HomeMy WebLinkAbout2/21/2018 - STAFF REPORTS - 3.A. PALMsp4
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<-FCR��P CITY COUNCIL STAFF REPORT
DATE: February 21, 2018 LEGISLATIVE
SUBJECT: PROPOSED INTRODUCTION OF AN ORDINANCE OF THE CITY OF
PALM SPRINGS, CALIFORNIA, ADOPTING CHAPTER 2.60 OF THE
PALM SPRINGS MUNICIPAL CODE, RELATING TO PUBLIC
INTEGRITY
FROM: David H. Ready, City Manager
BY: Edward Z. Kotkin, City Attorney
SUMMARY
The proposed ordinance would establish conflict of interest disclosure and
disqualification standards beyond the requirements of state law, and beyond the policies
and procedures of most California counties and cities. This is the first of two legislative
packages adopting recommendations of the ad hoc Ethics, Transparency, and
Governmental Reform Subcommittee (Subcommittee) regarding public integrity matters.
The ordinance issues new mandates regarding positions held with respect to non-profit
entities, and as to rented and leased real property interests are issued as to disclosure
and disqualification. There is also a new requirement that each official keep his/her
Form 700 and these additional new disclosures up to date. In addition, applicants for
City approvals are now required to make disclosures re ownership. Finally, otherwise
"final" Planning Commission actions will not become final until ten (10) days after the
City Council receives notice about them, and they are posted to the City's website.
RECOMMENDATION:
1. Waive reading of the text and introduce for first reading proposed Ordinance No.
"ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA,
ADOPTING CHAPTER 2.60 OF THE PALM SPRINGS MUNICIPAL CODE,
RELATING TO PUBLIC INTEGRITY."
2. Appoint a new standing City Council standing subcommittee for public integrity
issues.
3. Receive and file this report, and provide direction as desired.
R'EM NO. 3--.
City Council Staff Report
February 21, 2018 -- Page 2
Public Integrity Ordinance
STAFF ANALYSIS:
On April 24, 2017, the Subcommittee under the last Council compiled, reviewed and
posted proposals by The Ethics, Transparency, and Governmental Reform Task Force
(the "Task Force"), dated April 24, 2017, to the City's website. This report reflected more
than a year of service by the Task Force, including public meetings and a joint study
session with the City Council. On-line access to the Task Force's proposals is available
http://www.palmspringsca.gov/government/mayor-city-council/ethics-transparency-
government-reform-task-force-recommendations.
The City Council considered Subcommittee recommendations regarding Task Force
work on public integrity and transparency on May 17, 2017, June 7, 2017, and October
4, 2017. On February 7, 2018, pursuant to Council direction as to thirty one (31)
enumerated recommendations considered by the Council on the last of these
occasions, the City Attorney and Subcommittee presented a proposed ordinance
advancing the first part of a legislative package related to public integrity matters (the
"2/7/18 Ordinance"), and reported as to progress implementing Subcommittee
recommendations.
The Council discussion of the 2/7/18 Ordinance provisions dealing with public official
service related to non-profit entities was robust. Subsequently, the Subcommittee
directed the City Attorney to overhaul the 2/7/18 Ordinance and address concerns
regarding the 2/7/18 Ordinance raised by Council members. The legislative draft of the
ordinance that the Subcommittee now proposes for introduction, showing the changes
made to the 2/7/18 Ordinance, is attached to this report as ATTACHMENT A, and a
"clean" version of the new proposed ordinance is attached to this report (the "2/21/18
Ordinance") as ATTACHMENT B.
The features of the 2/21/18 Ordinance that distinguish it from the 2/7/18 Ordinance are
as follows:
1. A new paragraph explains the purpose for the portion of this ordinance that
evoked the most discussion on February 7, 2018 as support for public officials
who serve non-profits, and assurance that such service be free of conflicts of
interest;
2. Removal of technical definitions from the ordinance in favor of direct explanations
of interests that create conflicts in all substantive portions of the ordinance, i.e.,
no need to look back at definitions;
3. An overall streamlining and simplification of ordinance language, whenever
practicable;
4. A new paragraph that explains the purpose for the portion of this ordinance that
deals with rented and leased interests;
5. A significantly reduced scope as to the officials that are subject to this ordinance
— elected officials, appointed board and commission members, the city manager
and the city attorney;
6. Clarification of the new chapter's application;2.15.18pm 02
City Council Staff Report
February 21, 2018-- Page 3
Public Integrity Ordinance
7. Specification of the fact that "changes" in an official's interest must only be the
subject of a written disclosure within thirty (30) days of the end of a quarter when
the change in question takes place (Note: the City Clerk will provide quarterly
reminders to the City's officials of this obligation)
8. Clarification as to the activity from which an official conflicted under this
ordinance is disqualified — voting and "advocating a particular result or outcome
with respect to an application" (explained in the relevant ordinance provision);
9. Elimination of indirect conflicts for officials under the ordinance;
10.Creation of a condition precedent for any action by an applicant aggrieved by an
alleged failure in City processing of an action ordinarily "final" by planning
commission action — written notice to the City of an intent to file a lawsuit, and an
opportunity for the City to cure any notice or posting violation;
11. Removal of the provision that gave aggrieved applicants filing a lawsuit the right
to recover costs and attorneys' fees incurred; and
12.A radically revised section regarding violations and enforcement whereby (i) an
official's first violation of this ordinance during a twelve (12) month period does
not prompt enforcement action, but rather a right to cure (as to a failure of
disclosure) or a public disclosure (as to a failure to disqualify), (ii) a statement
that an official who violates this ordinance is not subject to civil action or any
criminal penalty, and (N) a clarification that a vote wherein there has been a
failure of disqualification remains valid and enforceable.
Like the 2/7/18 Ordinance, the 2/21/18 Ordinance issues new public integrity mandates
for Palm Springs officials. These include a new legislative paradigm whereby officials
are subject to conflicts of interest arising from interests related to service to non-profit
entities, and from leased and rented interests in real property (regardless of the term of
the agreement, or the absence of any agreement). These "new" conflicts will require
that City officials make disclosures, in forms filed annually at the same time as Form
700, and declare conflicts of interest, recusing themselves from voting or advocating a
particular result or outcome regarding an application in which they have an interest,
whether related to non-profit service or rented/leased real property interests. The
2/21118 Ordinance, like the 2/7118 Ordinance, requires that Palm Springs officials file
updates as to any material change in their most recent Form 700, and other newly
mandated disclosure forms within thirty (30) days after the end of a quarter when a
change takes place.
While most cities and counties do not have public integrity standards that mandate
disclosure and/or disqualification based upon an official's relationship with a non-profit
entity, it warrants mention that according to federal regulations, the term "financial
interest" includes service, with or without compensation, as an officer or director of a
nonprofit entity, since the financial interests of the nonprofit entity are imputed to an
official. Thus, federal employees serving on nonprofit boards must sometimes disqualify
themselves from participation in government matters or seek a waiver of disqualification
(as described in Regulation 5 C.F.R., Section 2635.403a). Similarly, some local
jurisdictions also include a position as a director, officer, partner, or trustee with a non-
profit entity as creating a disclosable ownership or financial interest in government
2.15.18pm 03
City Council Staff Report
February 21, 2018 -- Page 4
Public Integrity Ordinance
decisions. See, e.g., City of San Francisco, Regulations Related to Conflicts of Interest,
Regulation 3.214-4. The Political Reform Act, the Brown Act, the Public Records Act,
and almost all California legislation related to the integrity of public officials and
institutions make it clear that their respective prescriptions establish minimum
thresholds for acceptable activity and conduct. Palm Springs has the absolute discretion
to adopt and implement standards beyond those mandated by state law.
When an official has a legal duty to advance the interest of a non-profit entity, whether
that official receives compensation in relation to the existence of that legal duty or not,
the official in question may be pulled in two different directions when the non-profit entity
is an applicant. Similarly, renters and lessors have easily identified and articulated
interests with respect to their occupancy, use, enjoyment and/or benefit from their real
property interest in their rented or leased property. To presume that a person will treat
matters that are literally "close to home" because he/she rents or leases that home
seems inconsistent with the fundamentals of human behavior.
Like the 2/7/18 Ordinance, the 2/21/18 Ordinance provides that applicants for City
approvals must now make certain disclosures regarding ownership, management and
persons who have invested in their respective companies. There remains a new
timeline applicable to actions by the City's Planning Commission becoming final; this
timeline and the newly mandated City notices to the Council and on the City's website
assure the Council and the public that such finality will not occur absent the availability
of information about these actions.
Beyond approval of the 2/21/18 Ordinance, staff requests appointment of a standing
Council subcommittee for public integrity issues. That appointment was requested on
February 7, 2018, but did not occur. Finally, the Council is encouraged to provide any
input or direction regarding (i) the City's new public integrity "whistleblower" hotline and
reporting system, (ii) the forthcoming new webpage regarding ethics and transparency,
(iii) the forthcoming new policies regarding information technology, and (iv) the balance
of the legislative package regarding additional ethics and transparency reforms. The
staff report from February 7, 2018 is attached to this report for reference regarding
these items as ATTACHMENT C. The thirty-one (31) underlying recommendations
were reflected in the staff report for October 4, 2017, attached for reference as
ATTACHMENT D.
ALTERNATIVES:
• Reject the proposed ordinance, or any part thereof, and/or provide direction or
alternative language for revision of same
• Direct the Subcommittee and/or city attorney to revise and resubmit either the
proposed ordinance, together with additional information desired, if any
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) DETERMINATION:
2.15.18pm 04
City Council Staff Report
February 21, 2018 -- Page 5
Public Integrity Ordinance
Section 15378(b)(5) of the California Environmental Quality Act ("CEQA") Guidelines
exempts activities that are covered under the general rule that CEQA applies only to
projects that have the potential to cause significant effects on the environment. Where
it can be seen with certainty that there is no possibility the activity in question may have
a significant effect upon the environment, the activity is not subject to CEQA. The
requested action requests the City Council to consider adopting a resolution and
introducing an ordinance related to public integrity, and which itself will not result in a
direct or indirect physical change to the environment. Therefore, the requested action is
considered exempt from CEQA.
FISCAL IMPACT:
Not analyzed.
Edward Z. Kotkin, David H. Ready, Esq., ,
City Attorney City Manager
Attachments:
A. Proposed Ordinance (Legislative Draft, 2/7/18 vs. 2/21/18)
B. Proposed Ordinance
C. Staff Report from 2/7/18
D. Staff Report from 10/4/17
05
2.15.18pm
ATTACHMENT A
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, ADOPTING CHAPTER 2.60 OF THE PALM
SPRINGS MUNICIPAL CODE, RELATING TO PUBLIC
INTEGRITY
City Attorney's Summary
This Ordinance adopts Chapter 2.60 of the City's Municipal
Code relating to public integrity. The Ordinance expands the
breadth of "conflicts of interest" in the City, and mandates
disclosure by, and disqualification of officials from
in making government decision voting in City actions, beyond
the realm of the financial interests addressed by state law. The
Ordinance also requires new disclosures from applicants for
City approvals, and provides a new timeline for action by the
City's Planning Commission becoming final.
The City Council of the City of Palm Springs ordains:
SECTION 1. Title 2, Chapter 2.60 of the Palm Springs Municipal Code, PUBLIC
INTEGRITY is hereby adopted, to read as follows.
Chapter 2.60 PUBLIC INTEGRITY
2.60.010 Findings and Purpose
(A) From time to time the Gity has an interest in imnocinn greater ni 1hlin intenrihi
The City recognizes
service by public officials in community and non-profit organizations takes place, and
has an interest in ensuring that when public officials provide such service, that they
are insulated from a negative public perception and/or any allegation that a conflict of
interest impairs their fulfillment of their duty to the Cites
(B) Not all interests that create a conflict for public officials are financial in nature.
To limit the impact of non-financial conflicts of interest upon public service in the City,
the City Council has proscribed participation in making of governmental decisions by
officials who s, #eF 40mhave non-economic conflicts of interest reflected in this
Chapter.
(C) Non-economic conflicts of interest arise
bywhen officials, owe a legal duty to another person or organization and from rented
or leased real property interests.
(D) Applicants for land use entitlements linenseo perm is and other City approvals
are sometimes not natural persons. To ensure the avoidance of conflicts of interest by
public officials, in the instance of an applicant that is not a natural person, the City
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Ordinance No.
Page 2
should inquire into the applicant's status and identity, requiring disclosure by the
applicant of officers, directors, members, managers, ^^�'�r„a-investors who have aR
u ReF hip in+oro + in the pliGa Rt entity with a value of two thousand dollars
or managers.
(E) To further ensure against conflicts of interest applicants for City approvals
should disclose all investors, whether natural persons or not, who have an ownership
interest in the applicant entity with a value of two thousand dollars ($2,000.00) or
more.
(F) The City acknowledges that the interest of a public official who is a renter or
lessor of real property, whether as a residence a place of business or an investment,
has the potential in many, if not all instances, to create a conflict of interest for that
official with respect to applications inyolving_a second real property that will arguably
create impacts upon the vicinity of the property rented or leased by the official.
(E) The City's residents do not elect the members of the Planning Commission,
and Planning Commission actions often do not attract the degree of attention in the
community inherent to City Council consideration of a matter. That said, Planning
Commission decisions are final in many matters of significance. A Planning
Commission action should not become "final" before the public enjoys the benefit of
City Council and public awareness of the Planning Commission action in question.
Further, Planning Commission decisions being available for public review on the City's
website supports a transparency of planning action that the City desires.
2.60.020 Definitions
As used in this Chapter, the following definitions shall apply:
"Act" means the Political Reform Act of 1974 as it has been and may be
amended from time to time.
"Applicant" means a person or entity that applies for a City la Rd use on+i+lemon+
approval determined by a vote of City
officials.
"Application" means the application filed or presented by an applicant to the
City.
"Business Day" means a day of the week when city hall for the City of Palm
Springs is open for public business.
"Form 700" means the statement of economic interests filed by an official with
the California Fair Political Practices Commission and/or the city clerk, whether
pursuant to Government Code Section 87200 or the LeGa4—Gedelocal conflict of
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Ordinance No.
Page 3
interest code.
"LGGal Code" moans the CihJs local conflict of interest come as it may he
adopted and amfTeRded from time to time adeptina Title 2 of the Galifernia Gede of
"Material Change of Interest" means an official assumes, is assigned, resigns,
is terminated, purchases or sells, or otherwise comes to possess or forfeit eit�her_aa
an
interest identified in Section 2.60.040.
"Official" means every memcmber,—officer, employee OF eGRseltt lected or
appointed official who serves on the City Council or on any appointive board or
commission of the City covered by and subjeGt 4G, whether under the C
I esalCharter or this Code, and 6 'hjeet ee the effi^ial in er eGtien to the provisions-ef
City Manager and the Ac-t-City Attorney. An official's elected or appointed status has
no bearing upon the applicability of this Chapter- except as specifically stated.
"Planning Commission" means the body defined by Section 607 of the charter
of the City and Chapter 2.29 of this Code.
"SigRifinant Rac'tian" means a Position helm by a patural persen in relatiep to a
without limitation eff'oers and direGtGFS (in the instanoe of a separate legal eRtity that is an appliraant� examples Of SigRifiGant pe6itiolls nGI1
manageFS (in the iRstanee ef a limited liability Gempany), trustees and other fiduGiari
(in the stance a trust or aneth organization), anet inve rs whe have
�rn�„�FF�.�c�rro�e#��rvst�rrer�ryor,rz$# , stars--vvrrv�rvc�af�
eFest R the appliGaRt entity with a value of two thousand dollars
"Special Fiduciary Interest" means an interest that a City official holds when
(s)he 69 holds an
' as-
.. s FeSPE)RSi
a ntahlo olo the general well being of that persop entity, or
9r-zrEf.9l'h�'[Cirn�ffl �}at-�vl� ,
organizatiGn and 6WO owes a pFefessional, finanGial, or other duty of loyalty or care,4n
that role, te that persen, entity, or organization. The reGeipt of Monetary consideration
"
(c) a pm bone provider of professional E;eFV4Ges to a non profit corporation.
"Special Real Property Interest" means an interest in a parcel of improved or
r inimnroYert nemmernial er rnsirtential real prepehy, lesated in the (amity, and rented OF
r
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Ordinance No.
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leased, and held! essU nierd used OF maintainer/ by an ^+Finial whether in his/her
rananity as a natural person or as an officer, director, member mana^e.F, trustee yr
..f legal entity. rm Rd non o o e of a rental
ffd� "� r-crmc�T�-terrrr�rr�23f+S�eREe Ar�rvirc3fFS�cnEc—v,�rcnrcrr
agFeemeRt OF lease has no bearing UPOR the existence of a special real propeny
interest in question.
2.60.030 Application of Chapter
(A) The provisions of this Chapter shall apply generally to all applicants, officials,
and to all actions by the Planning Commission.
(B) Rreois+ens of this-This Chapter are to be supplementaFy,
eemplernentapYsupplements, complements, and is cumulative to all of the previsions
of this (merle state law, imposing duties of disclosure and any laW Gognizable at
GOMMen law disqualification upon officials beyond those codified in
as ^tom.r52 speGifiGally—stated„eFeiR, ae+throng inn this GhapteF shall
4 nterpreted, or construed OR any manner so as to limit any right oF peweF of the Gity ef
lawthe Act and the regulations adopted pursuant thereto,
the Aetand shall be strictly construed.
(C) When the requirements of this Chapter conflict with any other provision contained
elsewhere in this Code, or any regulation or requirement adopted by the City, or in
state law, the most restrictive, affirmatively demanding, or punitive requirement shall
prevail.
2.60.040 Duties of Officials
(A) Every official shall disclose each and all of his/her spee+al-fiduciary
intn, erestsinterests, wherein he/she serves as a voting member of a board of directors
of a non-profit entity without compensation, as an attorney or accountant for such an
entity who provides pro bono services, or as the trustee of a charitable trust. The
disclosure shall be on a written form prepared, maintained and amended as deemed
appropriate by the city clerk. The diselesure of speGial fiduciary ip+eres+s hall be
e)(eGuted URdeF peRalty E)f peowFy undeF the laws of the state, and shall be filed w
the vity olerk at or befere the end of the first bUsiness day of the menth of April
(9)(A) €y G.aTshall d's G.�� each and all of hisiheF speGial real pFepeFty
`'-'by the E+ty G;e*—. The disclosure of speGial real nr^n^r yt ese interests shall be
executed under penalty of perjury under the laws of the state, and shall be filed with
the city clerk at or before the end of the first business day of the month of April.
(B) Every official shall disclose each and all of his/her rented or leased interests in
real property located in the City. The disclosure shall be on a written form prepared,
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Ordinance No.
Page 5
maintained and amended as deemed appropriate by the city clerk. The disclosure of
rented or leased interests in real property shall be executed under penalty of perjury
under the laws of the state and shall be filed with the city clerk at or before the end of
the first business day of the month of April.
(C) In the event that any official experiences a material change of interest after
filing a form pursuant to subdivision (A) or (B) of this section 2.60.040, or as to any
interest identified in that official's most recent Form 700, but before the upcoming
annual filing date of a new form, the official in question shall file an amendment to the
form on file with the city clerk within thirty (30) days of the end of any quarter during
which the official in question is subject to the material change of interest.
(D) In the event that an official helds a special firth ininni has any interest with
respec identified in subdivision (A) of this section 2.60.040, which interest relates to
an applicant; and arises in the context of City GensideFat on of aRy action arising es
eF Felated teupon that applicant's application, that official suffers -freanhas a non-
financial conflict of interest under this Chapter-aad. An official who is conflicted under
this subdivision (D) of section 2.60.040 shall not engagevote upon, or participate in
advocate a particular result or relatedoutcome with respect
to the application— in question. For purposes of this subdivision (D) and
subdivision (E) of section 2.60.040 "advocating a particular result or outcome with
respect to an application" means influencing, encouraging, or attempting to influence
or encourage any other individual official to vote, or be more disposed to vote, in a
particular manner with respect to an application. Such an official shall statedisclose
the nature of his/her special fid6lGian. interest related to the applicant on the record of
arryeach proceeding before
him/her in the action in question, and recuse himself/herself from GE)RsideFafien -of
aGtion upon the C '„ ' voting with respect to said action.
(,E) in the event that an official holds a speGiall-iduGic ry interest_in ercc4�'ated to an
any aGtien arising from or related to that applicant's appliGation, that official may su
official in question suffers from a non financial GonfliGt of interest, the decisive faG
have a mateFial qmpaGt eir e#ert an the effiGial's special fiduciary interest er the peFsE)n
financial conflict of interest, and shall not engage er paFtiGipate in any City actii
nriSiRg fmm nr related to the nnnliGatien 'n questinn Q, nh an effininl shall state Oho
nature of hws1her special fiduciary interest on the record of any proGeeding arising fr
nr relnFnd- to the n nliGatinn in question, and remise himi ls-e /heFself from nnnoide Fatinn
of aGtion upon the appliGatio-R-.
(F)E In the event that
an official rents or leases real property located within five hundred (500) feet of any
4-"2.15.18om
Ordinance No.
Page 6
real property that is the subject of an application, that official Chas a non-
financial conflict of interest under this Chapter, and shall not engagevote upon, or
participat�te in any Gity astiGR aFis+ag €FeFnadvocate a particular result or
Felatedoutcome with respect to thatthe applications a-n in question. The term, and
existence or non-existence of any rental agreement or lease, has no bearing upon the
applicability of this section 2.60.040(E). Any official with a conflict hereunder shall
statedisclose the nature of his/her spec-ialrented or leased real property interest on the
record of anyeach proceeding before him/her
in the action in question, and recuse himself/herself from ^^^sideFatile^ ^+voting upon
the action in question.
tip'(F Gffir tsAn official who s��++�.,,eFfFemhas a non-financial Genf I*GtsconfIict of interest
as defined in this section 2.60.040 dodoes not have the duty to leave the room wh+sh
the matter arising +rem er Felated tewhen an action wherein he/she has the conflict in
question is considered.
2.60.050 Duties of Applicants
(A) Every applicant that is not aan individual natural person or comprised
exclusively of natural persons with no outside investors, must disclose to the City the
identity of each natural person who holds or occupies a significant position with
respect to that applicant entity or any entity that holds a signifiGant position with
respect to the applicant en+,+„ i.e., a sub entity-.—
with respect to the applicant entity, i.e., a sub-entity. For purposes of this section
2.60.050(A) "significant position" shall be defined as follows: (i) officers and directors
(in the instance of a corporation) (ii) members and managers (in the instance of a
limited liability company), (iii) trustees and other fiduciaries (in the instance of a trust
or another organization) and (iy) investors who have an ownership interest in the
applicant entity with a value of two thousand dollars ($2,000.00) or more
(B) In the event that an applicant fails to comply with subdivision (A) of this section
2.60.050, the application of the applicant in question shall be deemed incomplete for
all purposes, and the City shall not process or in any way consider the application of
the applicant in question.
(8)(C) A condition precedent to the initiation of any action by an aggrieved applicant
pursuant to subdivision (D) of section 2.60.070 shall be the filing with the city clerk of a
written notice of the aggrieved applicant's intent to file a petition for relief consistent
therewith. The written notice shall state with particularity the nature of the violation of
this Chapter alleged by the aggrieved applicant, and provide the City with not less
than ten (10) business days during which the City may cure the alleged violation. No
right pursuant to subdivision (D) of section 2.60.070 shall exist until the passage of the
entire period to cure pursuant hereto.
2.60.070 Planning Commission Action, City Processing
! Z
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Ordinance No
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(A) The City shall not deem "final" any action by the Planning Commission, which
action represents the ultimate and determinative action by the City with respect to any
application, and is not subject to mandatory review by the City Council unless and until
the date that is ten (10) days after the date when (TU the City Council has
received written notice to the City GeunGHof the Planning Commission action in
question, and (2 i) the City has posted written notice of the Planning Commission
action in question on the City's website.
(B) The planning director and the city clerk shall at all times use and apply their
best efforts to affect and ensure the City's prompt compliance with subdivision (A) of
this section 2.60.070.
(C) No applicant may rely or make any application based upon a Planning
Commission action as being "final" and binding upon the City unless and until the date
that is ten (10) days after notice has been received by the City Council and posted on
the City website pursuant to subdivision (A) of this section 2.60.070.
(D) Any applicant aggrieved and alleging a City failure to provide and/or post notice
pursuant to subdivision (A) of this section 2.60.070, and a corresponding lack of
finality with respect to a particular Planning Commission action, shall have the right,
commencing on the ninetieth (90th) day after the Planning Commission action in
question, to seek a writ of mandate in the Superior Court of the State of California,
County of Riverside, Palm Springs courthouse, declaring the Planning Commission
action to be final and binding upon the City. in the event that an appliGant prevails
against the City in an action filed pursuant to subdivision (D) of this sentinn 7 60 07-
that appli6ant shall re6eveF all oests of that aGtien and attE)Fneys' fees incurred in its
pursuit.
that a}_
' .
2.60.080 Violations and Enforcement
(A) AfwUpon verification by the City Attorney or his/her designee of an official or
appliGiptfailing to make a disclosure under this Chapter, an official shall have thirty
(30) days, after notification bV the city clerk in writing of any alleged failure to disclose,
during which he/she may correct the violation related to that failure to disclose. The
correction shall consist of a verbal disclosure at the next public meeting of the
legislative body of which the official in question is a member. Provided that an official
makes proper disclosure during that thirty (30) day period with respect to his/her first
disclosure violation within any period of twelve (12) months, that official shall not be
subject to anV enforcement bV the CitV, pursuant to subdivision (C) of this section
2.60.080, as to the violation in question.
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(B) Upon verification by the City Attorney or his/her designee of an official failing to
properly recuse himself/herself under this Chapter, and after notification by the city
clerk in writing of any alleged failure to disqualify, the City Attorney or his/her designee
shall prepare and present a staff report to the City Council, not less than thirty (30)
days after such notification, which report shall describe with particularity the failure to
disqualify in question. That staff report shall be received and filed at the City Council's
first public meeting after the passage of this thirty (30) day post-notification period, as
a consent calendar item. No official shall be subject to any enforcement by the City,
pursuant to subdivision (C) of this section 2.60.080, with respect to his/her first
disqualification violation within any period of twelve (12) months.
(A)(C) An official who violates a provision of this Chapter and is subject to City
enforcement pursuant to subdivision (A) or subdivision (B) of this section 2.60.080 is
subject to administrative penalties pursuant to Chapters 1.01 and 1.06 of this Code...,
but not subject to any civil action or criminal penalty.
(D) An action upon an application taken by the City Council or any appointed board
or commission, wherein an official has a non-financial conflict of interest under this
Chapter but fails to disclose the existence and nature of that conflict, remains valid
and enforceable for all purposes notwithstanding any violation of this Chapter.
SECTION 2. If any section or provision of this Ordinance is for any reason held to be
invalid or unconstitutional by any court of competent jurisdiction, or contravened by
reason of any preemptive legislation, the remaining sections and/or provisions of this
ordinance shall remain valid. The City Council hereby declares that it would have
adopted this Ordinance, and each section or provision thereof, regardless of the fact
that any one or more section(s) or provision(s) may be declared invalid or
unconstitutional or contravened via legislation.
SECTION 3. Neither introduction nor adoption of this Ordinance represents a "project"
for purposes of the California Environmental Quality Act (CEQA), as that term is
defined by CEQA guidelines (Guidelines) section 15378, because this Ordinance is an
organizational or administrative activity that will not result in a direct or indirect
physical change in the environment, per section 15378(b)(5) of the Guidelines.
rf
-1$-F82.15.18om 8
Ordinance No.
Page 9
SECTION 4. The Mayor shall sign and the City Clerk shall certify to the passage and
adoption of this Ordinance and shall cause the same, or the summary thereof, to be
published and posted pursuant to the provisions of law and this Ordinance shall take
effect thirty (30) days after passage.
PASSED AND ADOPTED THIS DAY OF , 2018.
AYES:
NOES:
ABSTAIN:
ABSENT:
Robert Moon, Mayor
ATTEST:
Anthony J. Mejia, MMC, City Clerk
APPROVED AS TO FORM:
Edward Z. Kotkin, City Attorney
15
i ��z 15 I8om 9
ATTACHMENT B
t6
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, ADOPTING CHAPTER 2.60 OF THE PALM
SPRINGS MUNICIPAL CODE, RELATING TO PUBLIC
INTEGRITY
City Attorney's Summary
This Ordinance adopts Chapter 2.60 of the City's Municipal
Code relating to public integrity. The Ordinance expands the
breadth of "conflicts of interest" in the City, and mandates
disclosure by, and disqualification of officials from voting in City
actions, beyond the realm of the financial interests addressed
by state law. The Ordinance also requires new disclosures from
applicants for City approvals, and provides a new timeline for
action by the City's Planning Commission becoming final.
The City Council of the City of Palm Springs ordains:
SECTION 1. Title 2, Chapter 2.60 of the Palm Springs Municipal Code, PUBLIC
INTEGRITY is hereby adopted, to read as follows.
Chapter 2.60 PUBLIC INTEGRITY
2.60.010 Findings and Purpose
(A) The City recognizes service by public officials in community and non-profit
organizations takes place, and has an interest in ensuring that when public officials
provide such service, that they are insulated from a negative public perception and/or
any allegation that a conflict of interest impairs their fulfillment of their duty to the City.
(B) Not all interests that create a conflict for public officials are financial in nature.
To limit the impact of non-financial conflicts of interest upon public service in the City,
the City Council has proscribed participation in making of governmental decisions by
officials who have non-economic conflicts of interest reflected in this Chapter.
(C) Non-economic conflicts of interest arise when officials owe a legal duty to
another person or organization and from rented or leased real property interests.
(D) Applicants for City approvals are sometimes not natural persons. To ensure the
avoidance of conflicts of interest by public officials, in the instance of an applicant that
is not a natural person, the City should inquire into the applicant's status and identity,
requiring disclosure by the applicant of officers, directors, members, or managers.
(E) To further ensure against conflicts of interest, applicants for City approvals
should disclose all investors, whether natural persons or not, who have an ownership
17
2.1518pm
Ordinance No.
Page 2
interest in the applicant entity with a value of two thousand dollars ($2,000.00) or
more.
(F) The City acknowledges that the interest of a public official who is a renter or
lessor of real property, whether as a residence, a place of business or an investment,
has the potential in many, if not all instances, to create a conflict of interest for that
official with respect to applications involving a second real property that will arguably
create impacts upon the vicinity of the property rented or leased by the official.
(G) The City's residents do not elect the members of the Planning Commission,
and Planning Commission actions often do not attract the degree of attention in the
community inherent to City Council consideration of a matter. That said, Planning
Commission decisions are final in many matters of significance. A Planning
Commission action should not become "final" before the public enjoys the benefit of
City Council and public awareness of the Planning Commission action in question.
Further, Planning Commission decisions being available for public review on the City's
website supports a transparency of planning action that the City desires.
2.60.020 Definitions
As used in this Chapter, the following definitions shall apply:
"Act" means the Political Reform Act of 1974 as it has been and may be
amended from time to time.
"Applicant" means a person or entity that applies for a City approval determined
by a vote of City officials.
"Application" means the application filed or presented by an applicant to the
City.
"Business Day" means a day of the week when city hall for the City of Palm
Springs is open for public business.
"Form 700" means the statement of economic interests filed by an official with
the California Fair Political Practices Commission and/or the city clerk, whether
pursuant to Government Code Section 87200 or the local conflict of interest code.
"Material Change of Interest" means an official assumes, is assigned, resigns,
is terminated, purchases or sells, or otherwise comes to possess or forfeit an interest
identified in Section 2.60.040.
"Official" means every elected or appointed official who serves on the City
Council or on any appointive board or commission of the City, whether under the
Charter or this Code, the City Manager and the City Attorney. An official's elected or
Jq
. I8
2,15.18pin 2
Ordinance No.
Page 3
appointed status has no bearing upon the applicability of this Chapter except as
specifically stated.
"Planning Commission" means the body defined by Section 607 of the charter
of the City and Chapter 2.29 of this Code.
2.60.030 Application of Chapter
(A) The provisions of this Chapter shall apply generally to all applicants, officials,
and to all actions by the Planning Commission.
(B) This Chapter supplements, complements, and is cumulative to state law,
imposing duties of disclosure and disqualification upon officials beyond those codified
in the Act and the regulations adopted pursuant thereto, and shall be strictly
construed.
(C) When the requirements of this Chapter conflict with any other provision contained
elsewhere in this Code, or any regulation or requirement adopted by the City, or in
state law, the most restrictive, affirmatively demanding, or punitive requirement shall
prevail.
2.60.040 Duties of Officials
(A) Every official shall disclose each and all of his/her interests, wherein he/she
serves as a voting member of a board of directors of a non-profit entity without
compensation, as an attorney or accountant for such an entity who provides pro Bono
services, or as the trustee of a charitable trust. The disclosure shall be on a written
form prepared, maintained and amended as deemed appropriate by the city clerk. The
disclosure of these interests shall be executed under penalty of perjury under the laws
of the state, and shall be filed with the city clerk at or before the end of the first
business day of the month of April.
(B) Every official shall disclose each and all of his/her rented or leased interests in
real property located in the City. The disclosure shall be on a written form prepared,
maintained and amended as deemed appropriate by the city clerk. The disclosure of
rented or leased interests in real property shall be executed under penalty of perjury
under the laws of the state, and shall be filed with the city clerk at or before the end of
the first business day of the month of April.
(C) In the event that any official experiences a material change of interest after
filing a form pursuant to subdivision (A) or (B) of this section 2.60.040, or as to any
interest identified in that official's most recent Form 700, but before the upcoming
annual filing date of a new form, the official in question shall file an amendment to the
19
2,15.18Pm 3
Ordinance No.
Page 4
form on file with the city clerk within thirty (30) days of the end of any quarter during
which the official in question is subject to the material change of interest.
(D) In the event that an official has any interest identified in subdivision (A) of this
section 2.60.040, which interest relates to an applicant and arises in the context of
City action upon that applicant's application, that official has a non-financial conflict of
interest under this Chapter. An official who is conflicted under this subdivision (D) of
section 2.60.040 shall not vote upon, or advocate a particular result or outcome with
respect to the application in question. For purposes of this subdivision (D) and
subdivision (E) of section 2.60.040, "advocating a particular result or outcome with
respect to an application" means influencing, encouraging, or attempting to influence
or encourage any other individual official to vote, or be more disposed to vote, in a
particular manner with respect to an application. Such an official shall disclose the
nature of his/her interest related to the applicant on the record of each proceeding
before him/her in the action in question, and recuse himself/herself from voting with
respect to said action.
(E) In the event that an official rents or leases real property located within five
hundred (500) feet of any real property that is the subject of an application, that official
has a non-financial conflict of interest under this Chapter, and shall not vote upon, or
advocate a particular result or outcome with respect to the application in question. The
term, and existence or non-existence of any rental agreement or lease, has no bearing
upon the applicability of this section 2.60.040(E). Any official with a conflict hereunder
shall disclose the nature of his/her rented or leased real property interest on the record
of each proceeding before him/her in the action in question, and recuse himself/herself
from voting upon the action in question.
(F) An official who has a non-financial conflict of interest as defined in this section
2.60.040 does not have the duty to leave the room when an action wherein he/she has
the conflict in question is considered.
2.60.050 Duties of Applicants
(A) Every applicant that is not an individual natural person, or comprised
exclusively of natural persons with no outside investors, must disclose to the City the
identity of each natural person who holds or occupies a significant position with
respect to that applicant entity or any entity that owns an interest or derives profits with
respect to the applicant entity, i.e., a sub-entity. For purposes of this section
2.60.050(A), "significant position" shall be defined as follows: (i) officers and directors
(in the instance of a corporation), (ii) members and managers (in the instance of a
limited liability company), (ifi) trustees and other fiduciaries (in the instance of a trust
or another organization), and (iv) investors who have an ownership interest in the
applicant entity with a value of two thousand dollars ($2,000.00) or more
20
2.15.iapi„ 4
Ordinance No.
Page 5
(B) In the event that an applicant fails to comply with subdivision (A) of this section
2.60.050, the application of the applicant in question shall be deemed incomplete for
all purposes, and the City shall not process or in any way consider the application of
the applicant in question.
(C) A condition precedent to the initiation of any action by an aggrieved applicant
pursuant to subdivision (D) of section 2.60.070 shall be the filing with the city clerk of a
written notice of the aggrieved applicant's intent to file a petition for relief consistent
therewith. The written notice shall state with particularity the nature of the violation of
this Chapter alleged by the aggrieved applicant, and provide the City with not less
than ten (10) business days during which the City may cure the alleged violation. No
right pursuant to subdivision (D) of section 2.60.070 shall exist until the passage of the
entire period to cure pursuant hereto.
2.60.070 Planning Commission Action, City Processing
(A) The City shall not deem "final" any action by the Planning Commission, which
action represents the ultimate and determinative action by the City with respect to any
application, and is not subject to mandatory review by the City Council unless and until
the date that is ten (10) days after the date when (i) the City Council has received
written notice of the Planning Commission action in question, and (ii) the City has
posted written notice of the Planning Commission action in question on the City's
website.
(B) The planning director and the city clerk shall at all times use and apply their
best efforts to affect and ensure the City's prompt compliance with subdivision (A) of
this section 2.60.070.
(C) No applicant may rely or make any application based upon a Planning
Commission action as being "final" and binding upon the City unless and until the date
that is ten (10) days after notice has been received by the City Council and posted on
the City website pursuant to subdivision (A) of this section 2.60.070.
(D) Any applicant aggrieved and alleging a City failure to provide and/or post notice
pursuant to subdivision (A) of this section 2.60.070, and a corresponding lack of
finality with respect to a particular Planning Commission action, shall have the right,
commencing on the ninetieth (goth) day after the Planning Commission action in
question, to seek a writ of mandate in the Superior Court of the State of California,
County of Riverside, Palm Springs courthouse, declaring the Planning Commission
action to be final and binding upon the City.
21
2.15.18pm 5
Ordinance No.
Page 6
2.60.080 Violations and Enforcement
(A) Upon verification by the City Attorney or his/her designee of an official failing to
make a disclosure under this Chapter, an official shall have thirty (30) days, after
notification by the city clerk in writing of any alleged failure to disclose, during which
he/she may correct the violation related to that failure to disclose. The correction shall
consist of a verbal disclosure at the next public meeting of the legislative body of
which the official in question is a member. Provided that an official makes proper
disclosure during that thirty (30) day period with respect to his/her first disclosure
violation within any period of twelve (12) months, that official shall not be subject to
any enforcement by the City, pursuant to subdivision (C) of this section 2.60.080, as to
the violation in question.
(B) Upon verification by the City Attorney or his/her designee of an official failing to
properly recuse himself/herself under this Chapter, and after notification by the city
clerk in writing of any alleged failure to disqualify, the City Attorney or his/her designee
shall prepare and present a staff report to the City Council, not less than thirty (30)
days after such notification, which report shall describe with particularity the failure to
disqualify in question. That staff report shall be received and filed at the City Council's
first public meeting after the passage of this thirty (30) day post-notification period, as
a consent calendar item. No official shall be subject to any enforcement by the City,
pursuant to subdivision (C) of this section 2.60.080, with respect to his/her first
disqualification violation within any period of twelve (12) months.
(C) An official who violates a provision of this Chapter and is subject to City
enforcement pursuant to subdivision (A) or subdivision (B) of this section 2.60.080 is
subject to administrative penalties pursuant to Chapters 1.01 and 1.06 of this Code,
but not subject to any civil action or criminal penalty.
(D) An action upon an application taken by the City Council or any appointed board
or commission, wherein an official has a non-financial conflict of interest under this
Chapter but fails to disclose the existence and nature of that conflict, remains valid
and enforceable for all purposes notwithstanding any violation of this Chapter.
SECTION 2. If any section or provision of this Ordinance is for any reason held to be
invalid or unconstitutional by any court of competent jurisdiction, or contravened by
reason of any preemptive legislation, the remaining sections and/or provisions of this
ordinance shall remain valid. The City Council hereby declares that it would have
adopted this Ordinance, and each section or provision thereof, regardless of the fact
that any one or more section(s) or provision(s) may be declared invalid or
unconstitutional or contravened via legislation.
SECTION 3. Neither introduction nor adoption of this Ordinance represents a "project"
for purposes of the California Environmental Quality Act (CEQA), as that term is
defined by CEQA guidelines (Guidelines) section 15378, because this Ordinance is an
22
2,15 ispin 6
Ordinance No.
Page 7
organizational or administrative activity that will not result in a direct or indirect
physical change in the environment, per section 15378(b)(5) of the Guidelines.
SECTION 4. The Mayor shall sign and the City Clerk shall certify to the passage and
adoption of this Ordinance and shall cause the same, or the summary thereof, to be
published and posted pursuant to the provisions of law and this Ordinance shall take
effect thirty (30) days after passage.
PASSED AND ADOPTED THIS DAY OF 12018.
AYES:
NOES:
ABSTAIN:
ABSENT:
Robert Moon, Mayor
ATTEST:
Anthony J. Mejia, MMC, City Clerk
APPROVED AS TO FORM:
Edward Z. Kotkin, City Attorney
L�
2,15.1Rpm 7
ATTACHMENT C
24
'ALM$A
c
u v+
gOFOVL'' CITY COUNCIL STAFF REPORT
DATE: J.apwaq-�4-P8 Co^tinV4 +V R. rvdl 7,A01'r LEGISLATIVE
SUBJECT: PROPOSED INTRODUCTION OF AN ORDINANCE OF THE CITY OF
PALM SPRINGS, CALIFORNIA, ADOPTING CHAPTER 2.60 OF THE
PALM SPRINGS MUNICIPAL CODE. RELATING TO PUBLIC
INTEGRITY
FROM: David H. Ready, City Manager
BY: Edward Z. Kotkin, City Attorney
SUMMARY
If the proposed ordinance is approved, the City of Palm Springs will have conflict of
interest disclosure and disqualification standards that are higher than the requirements
of state law, and beyond the policies and procedures of most counties and cities. This is
the first of two legislative packages adopting recommendations of the ad hoc Ethics,
Transparency. and Governmental Reform Subcommittee (Subcommittee) regarding
public integrity matters. New mandates regarding "special fiduciary interests" (SFIs),
rented and leased real property interests are issued as to disclosure and
disqualification. There is a new requirement that each official keep his/her Form 700
and these additional new disclosures up to date. Applicants for City approvals are now
required to make disclosures re ownership. Finally, otherwise "final" Planning
Commission actions will not become final until ten (10) days after the City Council
receives notice about them, and they are posted to the City's website. This report also
updates the Council on staff work since October implementing Subcommittee
recommendations.
RECOMMENDATION:
1. Waive reading of the text and introduce for first reading proposed Ordinance No.
"ORDINANCE OF THE CITY OF PALM SPRINGS, CALIFORNIA,
ADOPTING CHAPTER 2.60 OF THE PALM SPRINGS MUNICIPAL CODE,
RELATING TO PUBLIC INTEGRITY."
2. Appoint a new standing City Council standing subcommittee for public integrity
issues.
3. Receive and file this report, and provide direction as desired.
nVA NO.
25
City Council Staff Report
January 24, 2018-- Page 2
Public Integrity Ordinance
STAFF ANALYSIS:
At the direction of City Council on October 4, 2017, the City Attorney's Office has taken
action upon Subcommittee recommendations. The Council now considers the
introduction of an ordinance issuing several new public integrity mandates for Palm
Springs officials. These include a new legislative paradigm whereby officials are subject
to conflicts of interest arising from "special fiduciary interests" (SFIs) and from leased
and rented interests in real property, regardless of the term of the agreement, or the
absence of any agreement. These conflicts of interest will require that City officials
make disclosures, in forms filed annually, declare conflicts of interest, and recuse
themselves from participation in government decisions related to their SFIs and their
rented or leased property interest. The new public integrity ordinance also requires that
Palm Springs officials file updates as to any material change in their most recent Form
700, and other newly mandated disclosure forms within thirty (30) days. Applicants for
City land use entitlements, licenses, permits and other approvals, must now make
certain disclosures regarding ownership. There is also a new timeline applicable to
actions by the City's Planning Commission becoming final. Beyond new legislation, staff
requests appointment of a standing Council subcommittee for public integrity issues.
Finally, this report updates the Council regarding (i) the City's new public integrity
"whistleblower" hotline and reporting system, (ii) the forthcoming new webpage
regarding ethics and transparency, (iii) the forthcoming new policies regarding
information technology, and (iv) the balance of the legislative package regarding
additional ethics and transparency reforms.
The Subcommittee developed thirty-one (31) points requiring action in its second report
to the Council on June 7, 2017. When the Council considered the Subcommittee's
Implementation Update and Plan on October 4, 2017, it noted that some of these
actions had already been implemented, framed others as part of a non-mandatory
update to the City's local conflict of interest code, referenced policy decisions as
elements of a legislative package to be adopted concurrent with that update, and
identified several points of organizationallinstitutional evolution that would be
implemented at the staff level. Upon preparation of this report, the city attorney
determined that the update to the local conflict of interest code was neither necessary
nor desirable, and that the new mandates proposed by the Subcommittee would be best
pursued via a codified Ordinance. In addition, these new public integrity rules will now
be codified, and therefore more accessible to the public than resolutions or the local
conflict of interest code tend to be.
NEW PUBLIC INTEGRITY LEGISLATION
Non-Financial Conflicts of Interest Requiring Disqualification and Recusal
On October 4, 2017, the Council made policy decisions that require legislation in order
to be implemented. If the proposed ordinance is introduced by the Council, it will cause
several important changes in the way that the City does business, and elevate the City's
level of public integrity policy to a point in excess of any requirement under the Act or
1,18.I8 26
City Council Staff Report
January 24, 2018--Page 3
Public Integrity Ordinance
any other applicable federal or state law. The proposed changes that involve new
disclosures by Palm Springs officials may be summarized as follows:
1. City officials shall complete and file an annual form with the City Clerk disclosing
"special fiduciary interests" (SFIs);
2. City officials shall complete and file an annual form with the City Clerk disclosing
rented or leased interests in real property; and
3. City officials shall file updates as to any material change in the most recent Form
700 or SFI disclosure form within thirty (30) days.
These disclosure provisions have corollary provisions that mandate recusal and specify
penalties for any failure to disclose or recuse as required.
The new local requirement of disclosure of SFIs and rented or leased real property
interests is based upon the principle that although state law doesn't require the
disclosure of these non-financial interests, or disqualification based upon their
existence, the interests do impact a public official's perspective on government
decisions. Can a public official avoid influence and/or conflict arising from his/her
uncompensated position as a member of a charitable organization's board of directors
when that organization is the applicant for a City approval with respect to which (s)he is
called to act? Can a public official avoid influence and/or conflict arising from his/her
leased home's location less than five hundred (500) feet away from a major new project,
upon which (s)he must take action, when the project in question will create adverse
impacts in its immediate vicinity? State law, including the Act, applies to financial
conflicts of interest. The FPPC has comprehensive regulations established to assist
officials in analyzing those conflicts to determine whether they require disclosure and/or
disqualification. There are also regulations that address penalties for errors by officials.
The new Palm Springs prohibition against participating in a government decision that
impacts an official's SFI or his/her rented or leased real property interest addresses
conflicts that are not be prohibited based upon financial import under the Act, but do rise
to a level where the City Council wants officials to adhere to a higher standard.
Conflict analysis as to SFIs is based upon the Subcommittee assertion that
notwithstanding the absence of financial interest, the holder of an SFI has a conflict of
interest born of his/her duty to the organization that gives rise to the SFI. The analysis
parallels analytics of financial conflicts under the Act. Even if an official's duty is not
based upon money in his/her pocket, that duty is real and creates a problem for an
official asked to do his/her duty exclusively in the City's interest. Similarly, a rented or
leased interest, particularly in a real property that an official uses as his/her home or
business location, has a reasonably high likelihood of impacting that official's
preferences. i.e., an official does not want something (s)he views as a negative existing
in close proximity to his rented or leased home or workplace. Again, conflict analysis
under the proposed ordinance parallels analysis of financial conflicts of interest arising
from real property interests under the Act.
These new non-financial conflicts do not create an interest that State law views as
creating a conflict, and the City is mindful of that fact in allowing an official who is
"conflicted" based upon one of these new bases, and discloses that "conflict," to remain
1.18.18 27
City Council Staff Report
January 24, 2018— Page 4
Public Integrity Ordinance
in the room while the government decision in question is considered.
New Reauirement upon Applicants for Land Use Entitlements Licenses/Permits. and
Other Approvals
Palm Springs officials wanting to avoid conflicts of interest have the right to information
about the applicants that come before them. That principle prompted the Subcommittee
to require that when an applicant for a land use entitlement, a license, a permit, or
another for City approval is not a natural person, the City should inquire into the
applicant's status and identity. Accordingly, under this new Palm Springs rule, an
applicant must disclose its officers, directors, members, managers, trustees, fiduciaries,
and investors who have an ownership interest in the applicant entity with a value of two
thousand dollars ($2,000.00) or more. Absent that disclosure, there can be no action by
Palm Springs officials on the government decision in question. An application without
this required disclosure is incomplete, and the City is not required to take any action
upon it.
New Timeline for Planning Commission Decisions Becoming Final
The voters do not elect the members of the Planning Commission, and Planning
Commission actions often do not attract the degree of attention from the media or the
public inherent to City Council consideration of a matter. That said, a Planning
Commission decision is sometimes the ultimate and highest level City decision in
matters of significance in the community. The Subcommittee wanted to prevent
Planning Commission decisions from becoming "final" before the City realized the
benefit of Council awareness of Planning Commission action that would otherwise be
"final," and to enhance the transparency inherent to information about Planning
Commission decisions via availability on the City's website. To ensure Council and
public awareness of all Planning Commission actions that would otherwise become
"final," the City will now mandate written notice of such Planning Commission actions to
the Council, and publication about such actions on the City's website. Further, no such
Planning Commission action will be "final" until ten (10) days after notice to the Council
and posting on the website. Provisions of the proposed ordinance are directed at
ensuring City prompt processing of each Planning Commission action, and providing a
strong remedy to an applicant in the event of a City failure to promptly process such an
action.
Violations of this chapter are punishable by administrative citation. The proposed
Ordinance that affects all of these legislative changes is attached to this report as
ATTACHMENT A.
1.18.IR
28
City Council Staff Report
January 24, 2018--Page 5
Public Integrity Ordinance
STAFF ACTION
Staff has taken, and will continue to take action on several Subcommittee action items
that warrant mention at this time, and Council discussion and direction to the extent that
Councilmembers fees same is warranted.
• The city attorney's staff has created the public integrity whistleblower hotline and
reporting system in principle, developing a reporting form. The city attorney is
ready to implement the hotline, but wants any Council input available. A copy of
the proposed form is attached to this report as ATTACHMENT B, and draft web
content regarding the hotline is attached as ATTACHMENT C. The form and
content will be available to employees of the City and the public at large on the
City's webpage, and the city attorney seeks Council input as to the
nesting/location of this public integrity resource on the City's website.
• City attorney personnel will be completing training next month with "Vision
Internet" that will assist in the delivery of a strong webpage related to public
integrity. The training is tailored for personnel that manage department
webpages, and focuses on content strategy writing and accessibility issues.
• The information technology department has been working with the city attorney
to craft a new policy applicable to the use of the City's computer and
communications resources. The policy applies to computer, email, and personal
communication device usage, and is currently under review with the City
Manager's office.
• Upcoming legislative action - the city attorney will be commencing
(A) interdepartmental work with the city clerk and planning department on the
process of legislative and practical implementation of the Subcommittee's
direction that in addition to property owners, City residents will receive copies of
land use and other notices issued; and (B) work on the regulation of lobbying
activity and campaign contributions requested by the Subcommittee in October.
ALTERNATIVES:
• Reject the proposed ordinance, or any part thereof, and/or provide direction or
alternative language for revision of same
• Direct the Council Subcommittee and/or city attorney to revise and resubmit
either the proposed ordinance, together with additional information desired, if any
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) DETERMINATION:
Section 15378(b)(5) of the California Environmental Quality Act ("CEQA") Guidelines
exempts activities that are covered under the general rule that CEQA applies only to
projects that have the potential to cause significant effects on the environment. Where
it can be seen with certainty that there is no possibility the activity in question may have
a significant effect upon the environment, the activity is not subject to CEQA. The
requested action requests the City Council to consider adopting a resolution and
1.18.18 :, J 9 A
City Council Staff Report
January 24,2018-- Page 6
Public Integrity Ordinance
introducing an ordinance related to public integrity, and which itself will not result in a
direct or indirect physical change to the environment. Therefore, the requested action is
considered exempt from CEQA.
FISCAL IMPACT:
Not analyzed.
Edward Z. Kotkin, kfarcus L. Full r, MPA, P.E., P.L.S.,
City Attorney Assistant City Manager
David H. Ready, Esq., Ph.D.,
City Manager
Attachments:
A. Proposed Ordinance
B. Draft Whistleblower Form
C. Proposed Web Content re Hotline
1.18.18
30
ATTACHMENT A
ATTACHMENT A
31
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF PALM SPRINGS,
CALIFORNIA, ADOPTING CHAPTER 2.60 OF THE PALM
SPRINGS MUNICIPAL CODE, RELATING TO PUBLIC
INTEGRITY
City Attorney's Summary
This Ordinance adopts Chapter 2.60 of the City's Municipal
Code relating to public integrity. The Ordinance expands the
breadth of "conflicts of interest" in the City, and mandates
disclosure by, and disqualification of officials from participation
in making government decisions, beyond the realm of the
financial interests addressed by state law. The Ordinance also
requires new disclosures from applicants for City approvals, and
provides a new timeline for action by the City's Planning
Commission becoming final.
The City Council of the City of Palm Springs ordains:
SECTION 1. Title 2, Chapter 2.60 of the Palm Springs Municipal Code, PUBLIC
INTEGRITY is hereby adopted, to read as follows.
Chapter 2.60 PUBLIC INTEGRITY
2.60.010 Findings and Purpose
(A) From time to time, the City has an interest in imposing greater public integrity
requirements on its officials than those required by state law.
(B) Not all interests that create a conflict for public officials are financial in nature.
To limit the impact of non-financial conflicts of interest upon public service in the City,
the City Council has proscribed participation in making of governmental decisions by
officials who suffer from non-economic conflicts of interest reflected in this Chapter.
(C) Non-economic conflicts of interest arise from certain fiduciary interests held by
officials, and from rented or leased interests in real property.
(D) Applicants for land use entitlements, licenses, permits, and other City approvals
are sometimes not natural persons. To ensure the avoidance of conflicts of interest by
public officials, in the instance of an applicant that is not a natural person, the City
should inquire into the applicant's status and identity, requiring disclosure by the
applicant of officers, directors, members, managers, and investors who have an
ownership interest in the applicant entity with a value of two thousand dollars
($2,000.00) or more.
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Ordinance No.
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(E) The City's residents do not elect the members of the Planning Commission,
and Planning Commission actions often do not attract the degree of attention in the
community inherent to City Council consideration of a matter. That said, Planning
Commission decisions are final in many matters of significance. A Planning
Commission action should not become "final" before the public enjoys the benefit of
City Council awareness of the Planning Commission action in question. Further,
Planning Commission decisions being available for public review on the City's website
supports a transparency of planning action that the City desires.
2.60.020 Definitions
As used in this Chapter, the following definitions shall apply:
"Act" means the Political Reform Act of 1974 as it has been and may be
amended from time to time.
"Applicant" means a person or entity that applies for a City land use entitlement,
license, permit, or another City approval.
"Application" means the application filed or presented by an applicant to the
City.
"Business Day" means a day of the week when city hall for the City of Palm
Springs is open for public business.
"Form 700" means the statement of economic interests filed by an official with
the California Fair Political Practices Commission and/or the city clerk, whether
pursuant to Government Code Section 87200 or the Local Code.
"Local Code" means the City's local conflict of interest code as it may be
adopted and amended from time to time, adopting Title 2 of the California Code of
Regulations, Section 18730.
"Material Change of Interest" means an official assumes, is assigned, resigns,
is terminated, purchases or sells, or otherwise comes to possess or forfeit either a
special fiduciary interest or a special real property interest subject to this Chapter.
"Official" means every member, officer, employee or consultant of the City
covered by and subject to the City's Local Code, and subjecting the official in question
to the provisions of the Act. An official's elected or appointed status has no bearing
upon the applicability of this Chapter.
"Planning Commission" means the body defined by Section 607 of the charter
of the City and Chapter 2.29 of this Code.
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Ordinance No.
Page 3
"Significant Position" means a position held by a natural person in relation to a
separate legal entity that is an applicant; examples of significant positions include
without limitation officers and directors (in the instance of a corporation), members and
managers (in the instance of a limited liability company), trustees and other fiduciaries
(in the instance of a trust or another organization), and investors who have an
ownership interest in the applicant entity with a value of two thousand dollars
($2,000.00) or more.
"Special Fiduciary Interest" means an interest that a City official holds when
(s)he (i) holds an identifiable role, such as a manager or authorized representative, as
to another natural person, or in relation to an entity or organization (H) is responsible
or accountable, in that role, for the general well-being of that person, entity, or
organization and (M) owes a professional, financial, or other duty of loyalty or care, in
that role, to that person, entity, or organization. The receipt of monetary consideration
from another natural person, or from any entity or organization has no bearing on the
determination as to whether the interest in question is a "special fiduciary interest."
Special fiduciary interests may be of a financial nature, or not. Examples of special
fiduciary interests include service as (a) a trustee for a charitable trust, (b) a non-
compensated voting member on a board of directors of a charitable organization, or
(c) a pro bono provider of professional services to a non-profit corporation.
"Special Real Property Interest" means an interest in a parcel of improved or
unimproved, commercial or residential real property, located in the City, and rented or
leased, and held, occupied, used or maintained by an official, whether in his/her
capacity as a natural person or as an officer, director, member, manager, trustee or
fiduciary of a legal entity. The term and existence or non-existence of a rental
agreement or lease has no bearing upon the existence of a special real property
interest in question.
2.60.030 Application of Chapter
(A) The provisions of this Chapter shall apply generally to all applicants, officials,
and to all actions by the Planning Commission.
(B) Provisions of this Chapter are to be supplementary, complementary and
cumulative to all of the provisions of this Code, state law, and any law cognizable at
common law or in equity. Except as otherwise specifically stated herein, nothing in this
Chapter shall be read, interpreted, or construed in any manner so as to limit any right
or power of the City of Palm Springs, the Planning Commission, or any official to a
greater extent than state law and regulations adopted pursuant thereto, including
without limitation the Act.
(C) When the requirements of this Chapter conflict with any other provision contained
elsewhere in this Code, or any regulation or requirement adopted by the City, or in
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Ordinance No.
Page 4
state law, the most restrictive, affirmatively demanding, or punitive requirement shall
prevail.
2.60.040 Duties of Officials
(A) Every official shall disclose each and all of his/her special fiduciary interests on
a written form prepared, maintained and amended as deemed appropriate by the city
clerk. The disclosure of special fiduciary interests shall be executed under penalty of
perjury under the laws of the state, and shall be filed with the city clerk at or before the
end of the first business day of the month of April.
(B) Every official shall disclose each and all of his/her special real property
interests on a written form prepared, maintained and amended as deemed appropriate
by the city clerk. The disclosure of special real property interests shall be executed
under penalty of perjury under the laws of the state, and shall be filed with the city
clerk at or before the end of the first business day of the month of April.
(C) In the event that any official experiences a material change of interest after
filing a form pursuant to subdivision (A) or (B) of this section 2.60.040 or as to any
interest identified in that official's most recent Form 700, but before the upcoming
annual filing date of a new form, the official in question shall file an amendment to the
form on file with the city clerk within thirty (30) days of the material change of interest.
(D) In the event that an official holds a special fiduciary interest with respect to an
applicant, in the context of City consideration of any action arising from or related to
that applicant's application, that official suffers from a non-financial conflict of interest
under this Chapter, and shall not engage or participate in any City action arising from
or related to that applicant's application. Such an official shall state the nature of
his/her special fiduciary interest on the record of any proceeding arising from or
related to that applicant's application, and recuse himself/herself from consideration of
action upon the applicant's application.
(E) In the event that an official holds a special fiduciary interest related to an
application but not with respect to the applicant, in the context of City consideration of
any action arising from or related to that applicant's application, that official may suffer
from a non-financial conflict of interest under this Chapter. In determining whether the
official in question suffers from a non-financial conflict of interest, the decisive factor
shall be whether it is reasonably foreseeable that City action upon the application will
have a material impact or effect on the official's special fiduciary interest or the person
or entity associated therewith. If it is so foreseeable, the official suffers from a non-
financial conflict of interest, and shall not engage or participate in any City action
arising from or related to the application in question. Such an official shall state the
nature of his/her special fiduciary interest on the record of any proceeding arising from
or related to the application in question, and recuse himself/herself from consideration
of action upon the application.
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Ordinance No.
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(F) In the event that an official holds a special real property interest located within
five hundred (500) feet of any real property that is the subject of an application, that
official suffers from a non-financial conflict of interest under this Chapter, and shall not
engage or participate in any City action arising from or related to that application. Such
an official shall state the nature of his/her special real property interest on the record
of any proceeding arising from or related to that application, and recuse
himself/herself from consideration of action upon the application.
(G) Officials who suffer from non-financial conflicts of interest as defined in this
section 2.60.040 do not have the duty to leave the room which the matter arising from
or related to the conflict in question is considered.
2.60.060 Duties of Applicants
(A) Every applicant that is not a natural person must disclose the identity of each
natural person who holds or occupies a significant position with respect to that
applicant entity or any entity that holds a significant position with respect to the
applicant entity, i.e., a sub-entity.
I
(B) In the event that an applicant fails to comply with subdivision (A) of this section
2.60.050, the application of the applicant in question shall be deemed incomplete for
all purposes, and the City shall not process or in any way consider the application of
i
the applicant in question.
2.60.070 Planning Commission Action, City Processing
(A) The City shall not deem "final" any action by the Planning Commission, which
action represents the ultimate and determinative action by the City with respect to any
application, and is not subject to mandatory review by the City Council unless and until
the date that is ten (10) days after the date when (1) the City Council has
received written notice to the City Council of the Planning Commission action in
question, and (2)the City has posted written notice of the Planning Commission action
in question on the City's website.
(B) The planning director and the city clerk shall at all times use and apply their
best efforts to affect and ensure the City's prompt compliance with subdivision (A) of
this section 2.60.070.
(C) No applicant may rely or make any application based upon a Planning
Commission action as being "final" and binding upon the City unless and until the date
that is ten (10) days after notice has been received by the City Council and posted on
the City website pursuant to subdivision (A) of this section 2.60.070.
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Ordinance No.
Page 6
(D) Any applicant aggrieved and alleging a City failure to provide and post notice
pursuant to subdivision (A) of this section 2.60.070 and a corresponding lack of finality
with respect to a particular Planning Commission action shall have the right,
commencing on the ninetieth (90th) day after the Planning Commission action in
question, to seek a writ of mandate in the Superior Court of the State of California,
County of Riverside, Palm Springs courthouse, declaring the Planning Commission
action to be final and binding upon the City. In the event that an applicant prevails
against the City in an action filed pursuant to subdivision (D) of this section 2.60.070,
that applicant shall recover all costs of that action and attorneys' fees incurred in its
pursuit.
2.60.080 Violations and Enforcement
Any official or applicant who violates a provision of this Chapter is subject to
administrative penalties pursuant to Chapters 1.01 and 1.06 of this Code.
SECTION 2. If any section or provision of this Ordinance is for any reason held to be
invalid or unconstitutional by any court of competent jurisdiction, or contravened by
reason of any preemptive legislation, the remaining sections and/or provisions of this
ordinance shall remain valid. The City Council hereby declares that it would have
adopted this Ordinance, and each section or provision thereof, regardless of the fact
that any one or more section(s) or provision(s) may be declared invalid or
unconstitutional or contravened via legislation.
SECTION 3. Neither introduction nor adoption of this Ordinance represents a "project"
for purposes of the California Environmental Quality Act (CEQA), as that term is
defined by CEQA guidelines (Guidelines) section 15378, because this Ordinance is an
organizational or administrative activity that will not result in a direct or indirect
physical change in the environment, per section 15378(b)(5) of the Guidelines.
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Ordinance No.
Page 7
SECTION 4. The Mayor shall sign and the City Clerk shall certify to the passage and
adoption of this Ordinance and shall cause the same, or the summary thereof, to be
published and posted pursuant to the provisions of law and this Ordinance shall take
effect thirty (30) days after passage.
PASSED AND ADOPTED THIS DAY OF , 2018.
AYES:
NOES:
ABSTAIN:
ABSENT:
Robert Moon, Mayor
ATTEST:
Anthony J. Mejia, MMC, City Clerk
APPROVED AS TO FORM:
Edward Z. Kotkin, City Attorney
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ATTACHMENT B
ATTACHMENT B
39
WHISTLEBLOWER HOTLINE
The City of Palm Springs is committed to conducting its affairs ethically and in compliance with
the law. We take pride in the high quality services we provide to the community Therefore, we
offer a 24/7 Whistleblower hotline, (760) 322-8371, and an online complaint form, where
employees and members of the community can anonymously report suspicions and make a
report of alleged unethical, or unlawful conduct by any City official or employee.
About the HOTLINE
The City Council has created a whistleblower hotline (Hotline) to collect anonymous reports of
fraud, waste, abuse, and unethical or unlawful conduct. The Hotline is designed for reporting
suspected cases of fraud and any other ethical impropriety, by the City or any of its employees,
officials, contractors or vendors including but not limited to waste or abuse of City resources.
The Hotline is not a substitute for employment-related grievances or complaints by City
employees. as existing City policies and procedures provide channels for resolution of such
matters
While face-to-face reporting is always the best form of communication, it is not always feasible,
the Hotline provides another vehicle to report fraud or waste.
Confidentiality
Complainants can choose to remain anonymous. Hotline Administrators and the City Attorney,
will maintain the confidentiality of all complaints, including documents to the greatest extent
permitted by law. Complaints submitted online are routed directly to the Hotline Administrators
working under the supervision of the City Attorney. In the event an Administrator or the City
Attorney is involved in a complaint, the complaint will be submitted to the City Manager and
handled by the City Council's standing Public Integrity Subcommittee.
Whistleblower Protection
The City will neither retaliate, nor will it tolerate retaliation against those who, in good faith,
report suspected fraud. or waste. or who participate in an investigation of suspected violations.
An act of retaliation should be reported immediately to the City Attorney.. who will investigate
and report potential violations to appropriate authorities. In addition. those who bring matters to
the Hotline may be protected through the State of California Whistleblower Protection Act or
other State or federal laws.
Hotline Process
To assist in the processing of your complaint, you are advised that the more information that
you provide the better. However. a minimum amount of information is needed and must be
provided in order to allow commencement of any investigation.
40
Please obtain and be ready to provide the following information before you contact the Hotline:
Names of any individual(s) involved,
What happened and why you think it is/was wrong',
When and where the incident happened and names and contact information, if
known, of anyone that knows or witnessed what happened,
The department impacted and the people involved. and
Any documentation or other evidence you have or know of
Reporting Fraud, Waste or Abuse
Call the WHISTLEBLOWER HOTLINE at(760) 322-8341 - or complete and submit an online
complaint form Hotline Administrators investigate or refer to appropriate authorities all
complaints received. Complaints pertaining to City employees in the areas of employee
relations. discrimination harassment. safety, workers' compensation fraud and related
personnel matters will be forwarded to the City Attorney for appropriate handling and
investigation which may include the Police Department and/or outside investigators. depending
on the nature of the issue and whether criminal conduct is alleged.
ATTACHMENT C
ATTACHMENT C
42
�pLM SA
N City of Palm Springs
.* Public Integrity Whistleblower Hotline Submittal Form
C'q[1FORN�P
Mail, Email or fax the completed form to:
Attn: Public Integrity Whistleblower Hotline, 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92262
Email: whistleblower(o)palmspringsca.gov, Fax 760,322.8332 Attm Whistleblower Hotline
YOUR • - • • • •
Date:
Name:
Address:
Email Address: Phone:
REPORTINCIDENT
Complete the form and click submit when complete.
Who is involved in the alleged misconduct, fraud or unethical behavior?
Describe the alleged misconduct, fraud or unethical behavior in detail. (Include dates, time
and location if possible)
Other comments:
FOR INTERNAL AUDITONLY
Date Replied.
City Attorney Signature:
Comments:
Post0ffice Box 2743 • Palm Springs,California 92263-2743 43
Created(0 110 312 0 1 8)
ATTACHMENT D
44
p p LM gp
Y N
'F
04 CITY COUNCIL STAFF REPORT
DATE: October4, 2017 UNFINISHED BUSINESS
I
SUBJECT: IMPLEMENTATION UPDATE AND PLAN,
COUNCIL SUBCOMMITTEE REPORT, ETHICS AND TRANSPARENCY
I
FROM: David H. Ready, City Manager
BY: Edward Z. Kotkin, City Attorney
SUMMARY
The ad hoc Ethics, Transparency, and Governmental Reform Subcommittee, consisting
of Mayor Robert Moon and Councilmember Geoff Kors (Subcommittee) delivered a
report on June 7, 2017 that summarized recommendations by three (3) of eight (8)
ethics task force working subcommittees comprised by local residents. Direction to the
City Attorney at that time prompted the development of a prioritized ethics and
transparency implementation plan. The Subcommittee and City Attorney ask that the full
Council offer comments regarding the status quo as reflected in this report, provide
feedback on the implementation plan, and issue direction as to changes deemed
appropriate.
RECOMMENDATION:
Receive and file this report, and instruct the Subcommittee and/or City Attorney and
Staff to undertake action consistent with its terms, and/or any additional Council
direction agreed upon during discussion, and report back at meeting October 18, 2017.
STAFF ANALYSIS:
Each of the working subcommittees tendered a proposal to the Subcommittee. The
Subcommittee compiled, reviewed and posted the task force proposals, dated April 24,
2017, to the City's website. The eight (8) proposals addressed the following issues:
(i) ethics (including conflicts of interest), (H) transparency, (iii) election reform,
(iv) campaign finance, (v) communications, (vi) grants, (vii) diversity/inclusiveness, and
(viii) orientation & training. The full text of each of the subcommittee recommendations
remains available on the City's website at the following URL:
http://www.yalmsr)rinasca.gov/Q- overnmenVmayor-city-council/ethics-transparencv-
govern meat-reform-tas k-force-recom mend ations.
M!M NO.
45
City Council Staff Report
October 4, 2017-- Page 2
Implementation Update and Plan
Council Subcommittee Report, Ethics and Transparency
This staff report is the Subcommittee's third. In June, the Subcommittee made
substantive reform recommendations in three (3) areas — ethics, transparency, and
campaign finance. Each of the recommendations is reflected again below, along with
Subcommittee and City Attorney commentary. The Council is again reminded that many
of the actions proposed exceed the requirements of State law.
1. Palm Springs should update the City's Local Conflict of Interest Code (Local
Code) to ensure that its provisions minimize the chance that any public official
shall participate in, make decisions, or in any way attempt to use, his/her official
position to influence a governmental decision in which he or she knows, or has
reason to believe he or she has a financial interest. Local Code revisions and
clarifications will emphasize the requirement that any conflicted official expressly
disclose any such situation in public, and openly comport his/her conduct with the
recusal guidelines set forth by California law.
✓ The next mandatory local conflict of interest code update will occur during
2018. The Political Reform Act requires that by July 1 of each even
numbered year, the Council direct staff to commence a review of the local
conflict of interest code. Staff does so with an eye toward analyzing
whether newly created or filled positions, or changes in duties for existing
positions, require an update as to the list of employees who must file
forms disclosing their economic interests with the City Clerk. once staff
has completed that review, it returns a "biennial notice"to the City Council,
as to any changes necessary, no later than October 1 of that same year. If
a local code amendment proves necessary, it's adopted within ninety (90)
days, i.e., before the end of the year.
✓ The changes contemplated by this reform are substantive, and ideal for an
"odd" numbered year separate from the mandatory code review process.
✓ The Subcommittee and City Attorney recommend that the Council
consider this local conflict of interest code revision in December 2017,
inclusive of the substantive reforms referenced in this report, and
concurrent with the legislative package described below.
2. "Special Fiduciary Interests" such as those of directors, attorneys, accountants
will also result in a conflict of interest even if an official has no "Financial" interest.
✓ As the Subcommittee pointed out in June, reasonable minds might differ
as to the definition of a "special fiduciary interest." The Subcommittee's
draft definition is as follows:
■ A Palm Springs official has a "special fiduciary interest"related to a
person, company or entity apart from the City of Palm Springs,
when (s)he (i) holds an identifiable role, such as a manager or
authorized representative, (H) is responsible or accountable, in that
role, for the general well-being of that person, company or entity,
46
City Council Staff Report
October 4, 2017-- Page 3
Implementation Update and Plan
Council Subcommittee Report, Ethics and Transparency
and (iii) owes a professional, financial, or other duty of loyalty or
care, in that role, to that person, company or entity.
✓ Additional guidance to officials will be provided; the draft advisory is as
follows:
■ Special fiduciary interests may be of a financial nature, or not.
Examples of special fiduciary interests would include service as
(i) a trustee for a charitable trust, (ii) a non-compensated voting
member on a board of directors of a charitable organization, or
(iii) a pro Bono provider of professional services to a non-profit
mutual benefit corporation.
✓ The SFI form will reflect the definition, the examples referenced here, and
instruction to each official that in the event (s)he has any question
regarding identification of a special fiduciary interest, that such a question
must be directed in writing to the City Attorney no less than thirty (30) days
prior to the deadline for filing the SFI form.
3. A new annual reporting form for Palm Springs officials identified in the Code
should disclose Special Fiduciary Interests (SFIs) of that official. Again, this
exceeds the mandate of State law.
✓ The Subcommittee recommends that the first year for filing of the SFI
disclosure form would be 2018; the Council can approve the form at the
time when it approves the amendment to the local conflict of interest code,
December 2017.
4. The City Attorney will be the point person for the City on ethics, conflict of
interest, transparency and related legal issues within the task force's scope of
work.
✓ This reform is already in place.
5. A Public Integrity City Council Standing Committee should be created and
described in the Code. The standing committee should have quarterly public
meetings to discuss new rules, facilitate implementation of existing rules, plan
training for City officials to be provided, and take public testimony.
✓ This committee can be appointed in December 2017.
6. Create a confidential public integrity "whistleblower" hotline to be managed by the
City Attorney's office.
✓ The City Attorney's executive assistant starts work later this month, and
the target date for rolling out information regarding this hotline will be on or
before November 1, 2017.
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City Council Staff Report
October 4, 2017— Page 4
_ Implementation Update and Plan
Council Subcommittee Report, Ethics and Transparency
7. Ethics and Transparency Training, including training on the Brown Act and the
Public Records Act, must be completed every two (2) years by all officials listed
pursuant to State law. Dates of any live trainings should be posted on the City
Website and open to the public.
✓ The City Attorney is an experienced ethics trainer, and opportunities for
education of local officials can commence as directed by the standing
committee once it is formed.
8. Palm Springs' City Website should include a section on ethics and transparency
where information is provided including campaign contributors, Form 700, and
other relevant documents.
✓ Some information is already available on the City's website. For example,
City Council member Form 700s can be viewed at the following URL:
httR:/Avww.palmspringsca.gov/home/showdocument?id=43049
✓ The full website section can be developed by the City Clerk's office,
working cooperatively with the Information Services Department, on a
timeline specified by the Council.
9. Officials required to file Form 700 should also file an annual City of Palm Springs
SFI Disclosure Form, concurrently with theirs Form 700.
✓ The filing deadline for Palm Springs officials' first SFI disclosure form
would be April 2, 2018.
10.Changes and updates to the Form 700 or SFI Disclosure Form should be filed
with the City Clerk within thirty (30) days of a new or materially changed financial
or special fiduciary interest that would lead to a conflict of interest. This exceeds
the requirements of State law.
✓ This duty will be codified in the City's new local conflict of interest code to
be adopted in December 2017.
11.Each Palm Springs official's Form 700 and SFI Disclosure form will be posted on
the City Website.
✓ Timeline as directed by Council.
12. If a staff report for a City Council meeting is not available to the Council and to
the public 72 hours prior to the meeting, the agenda item related to the report in
question will be removed from the agenda, or commenced but adjourned to a
subsequent meeting without action taken absent a reasonable urgency that the
report and agenda item in question be considered at that meeting. Any such
reasonable urgency will be established by a 4/5 vote of the City Council.
✓ Already in place.
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City Council Staff Report
October 4, 2017--Page 5
Implementation Update and Plan
Council Subcommittee Report, Ethics and Transparency
13.Every public City Council policy body, including Boards and Commissions and
Standing Subcommittees, shall record, in their entirety, noticed meetings, study
sessions or hearings open to the public and held in the Council Chamber or a
City Hall conference room equipped with audio or video recording facilities. The
only exceptions to this rule shall be when facilities and/or staff are not reasonably
available, or in the event of technical or other logistic difficulties.
✓ Timeline as directed by Council.
14.Ad hoc status shall be reserved for any subsidiary body that is charged with
accomplishing a specific task in a finite period of time. A subsidiary body with
ad hoc status shall not have an expected duration longer than twelve (12)
months. Ordinarily, each subsidiary body shall be decommissioned by formal
action of its creating policy body when the task of the subsidiary body is
completed. Alternatively, a policy body that creates a subsidiary body shall justify
and authorize additional time for completion of that subsidiary body's task by
formal action at a public meeting.
✓ Already in place, but recommended for reconsideration by new Council
after election, to address vacancies on ad hoc subcommittees and
changes in circumstances since last Council action.
15.The City Clerk shall maintain, keep up to date and post in a reasonably
accessible location on the City's official website a complete list of all subsidiary
bodies, whether standing or ad hoc. Each listing shall specify the purpose and
members of the subsidiary body, the appointment date of members, whether the
subsidiary body is standing or ad hoc. For each ad hoc subsidiary body, the
listing shall state the body's specific task and estimated sunset date. The list
shall indicate which subsidiary bodies are committees (i.e., they were formed by
the City Council, or a City board or commission), and which are subcommittees
(i.e., they were formed by a committee). In the case of subcommittees, the list
shall specify what committee formed the subcommittee.
✓ Already in place.
16.Closed sessions are subject to detailed agenda requirements, including citation
of the specific Brown Act subdivision authorizing the item to be discussed in
closed session. Closed session decisions shall be reported out.
✓ Already in place.
■ NOTE: reporting does not take place in instances when a public
report might disadvantage the City with respect to litigation,
negotiations, or transactions and reporting is not required by law.
■ Legal settlement agreements entered upon Council authorization in
closed session that are not reportable by law immediately upon the
conclusion of closed session should be reported back to the entire
Council, in a quarterly City Attorney report detailing settlements.
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City Council Staff Report
October 4, 2017—Page 6
Implementation Update and Plan
Council Subcommittee Report, Ethics and Transparency
17.No closed session item shall consider the qualifications or engagement of an
independent contract attorney or law firm, for litigation services or otherwise,
unless discussion in open session concerning those matters would likely impact
the position of the City in pending litigation, or the City's exposure or risk in
anticipated litigation. In each of those events, a closed session is permissible
under the Brown Act and may take place upon notice in compliance with State
law.
✓ Already in place.
18.The City Clerk's office shall endeavor to produce records pursuant to any Public
Records Act request as quickly as practicable. The City's initial notice of
determination as to records requested will always issue within the ten 001
calendar day period specified by State law.
✓ Already in place; the City Attorney's office now employs a paralegal, and
later this month will employ an executive assistant. In addition, the City
Attorney has engaged an intern who is a law school graduate and resident
of the City. Additional personnel will enhance the City's responsiveness to
Public Records Act ("Act") requests.
19.Members of the City Council including the Mayor, the City Manager, the City
Clerk, and each Department Head shall keep a detailed daily calendar.
Ordinarily, such calendars, subject to redaction in accord with applicable State
law (e.g., based upon privilege, or the public interest being served by non-
disclosure) shall be public records subject to review.
✓ Already in place.
20.City council members and City employees should avoid the use of personal email
accounts to conduct official City business whenever practicable. Officials should
be mindful of law that states that the use of a personal account does not make a
communication private. The Council should acknowledge that technological and
logistic constraints sometimes make the use of external technology and/or
devices necessary in the efficient conduct of the City business.
✓ New policies to be presented to Council and implemented before 2018.
21.The City Attorney should be directed to review the City's policies and procedures
applicable to electronic devices and communication, technology in general, and
records retention (digital and documentary), and report back to the Council with
recommendations.
✓ New policies to be presented to Council and implemented before 2018.
50
City Council Staff Report
October 4,2017--Page 7
Implementation Update and Plan
Council Subcommittee Report, Ethics and Transparency
22.Pursuant to task force input during development of the final proposal, the City of
Palm Springs is in discussions with a reputable third party contractor to enhance
the utility of the City's website.
✓ Already in place—the OpenGov Portal; this new web-based financial
review tool dynamically presents revenues and expenses, from historical
trends to line item level details.
✓ With the OpenGov platform, residents and staff have access to current
and historical budget information, presented in a more user friendly
format.
✓ http://www paimsprinasca ciov/governmenttder)artments/finance-
treasury/budget/opengov-portal
23.Ordinarily, minutes of meetings or recordings of meetings of policy bodies shall
be posted to the City's website within one week after they have been approved
by the policy body.
✓ Timeline as directed by Council.
24.The City Attorney should research lobbyist registration and reporting ordinances
applicable to any individual who is not a City employee, but contracts for
economic consideration to communicate with the City to influence any legislative
or administrative action. One example is Chapter 2.72 of the West Hollywood
Municipal Code.
✓ Recommended for adoption as part of legislative package concurrent with
amendment to local conflict of interest code, implementation in early 2018.
25.Each lobbyist who represents the City in matters before any local, regional, state,
or federal administrative or legislative body should file a report of his/her activities
on behalf of the City of Palm Springs on a quarterly basis with the City Clerk's
office. When, in an exercise of reasonable discretion by the City, disclosure of
lobbyist work would adversely impact the interests of the City, the City may
instruct a lobbyist to omit such activities from this report.
✓ Recommended for adoption as part of legislative package concurrent with
amendment to local conflict of interest code, implementation in early 2018.
26.Residents, not just property owners, should receive notice of any project, event,
or other notice received by property owners pursuant to applicable State law or
City practice/policy.
✓ Recommended for adoption as part of legislative package concurrent with
amendment to local conflict of interest code, implementation in early 2018.
27.Officials shall apply the same conflict of interest rules applicable to property
interests that they own to all leased/rented interests, regardless of the term of the
lease/rental agreement, or lack of any agreement.
51
City Council Staff Report
_ October 4, 2017—Page 6
Implementation Update and Plan
Council Subcommittee Report, Ethics and Transparency
✓ To be incorporated in substantive amendment to the local conflict of
interest code, December 2017.
28.The City Attorney should prepare legislation for the Council to ensure that action
by the Planning Commission does not become final until ten (10) days after
(i) City Council receipt of written notice of the action in question, and (ii) posting
of information regarding the action on the City Website.
✓ Already in place to maximum extent practicable without legislation based
upon coordination with the City Clerk's office.
✓ Recommended for adoption as part of legislative package concurrent with
amendment to local conflict of interest code, implementation in early 2018.
29.When an applicant for land use entitlements or for any City approval is a
corporation, LLC or other legal entity apart from a natural person, officers and
directors of corporations, members and managers of LLCs, and investors who
have an ownership interest in the applicant entity with a value of two thousand
dollars ($2,000.00) or more must disclose that fact to the City prior to public
officials acting or voting with respect to any project or other government decision;
this disclosure will help ensure that public officials have knowledge that will allow
them to properly determine whether they suffer from a conflict of interest.
✓ Recommended for adoption as part of legislative package concurrent with
amendment to local conflict of interest code, implementation in early 2018.
30.An applicant with a financial interest in a matter coming before the City Council or
another public body, may not make a campaign contribution or donation of more
than one thousand dollars ($1,000.00) or more for six (6) months prior to, and six
(6) months after a vote on that matter. The prohibition upon donations made prior
to a vote shall only apply if the applicant/donor knew or reasonably should have
known when the matter would come before the Council or public body. If an
applicant/donor has made a donation contrary to this concept prior to the vote,
the applicant/donor shall inform the public official receiving the
contribution/donation, the City Attorney and the City Clerk of the
contributionldonation, and the public official in question must recuse
himself/herself from the vote. If a contribution/donation is made after the vote in
question, it shall be returned to the contributor/donor.
✓ Recommended for adoption as part of legislative package concurrent with
amendment to local conflict of interest code, implementation in early 2018.
31.All sales of City property, including without limitation Successor Agency property
shall be put out for competitive bid.
✓ Already in place as a matter of City policy.
52
City Council Staff Report
October 4, 2017-- Page 9
Implementabon Update and Plan
Council Subcommittee Report, Ethics and Transparency
The City Attorney and Subcommittee will return to the full Council, based upon direction
during the discussion of this agenda item, As a reminder, this report does not address
all of the work of the task force working subcommittees. The full Council may wish to
give direction to staff as to when the Subcommittee should return with substantive
recommendations regarding election reform, additional campaign finance items,
communications, grants, diversity/inclusiveness, and orientation &training.
ALTERNATIVES:
Reject this report and take no action, or direct the Council Subcommittee and/or City
Attorney to revise and resubmit the report.
CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) DETERMINATION:
Not applicable.
FISCAL IMPACT:
Not analyzed.
7A
Edward Z. Kotkin, City Attorney David H. Ready, Esq., Ph Ity anager
Attachments: None
53
REVISIONS TO Chapter 2.60.040
(D)In the event that an official serves an applicant as a voting member of a board of
directors of a non-profit entity without compensation, as an attorney or accountant
for such an entity who provides pro Bono services, or as the trustee of a charitable
trust, that official shall not vote upon, or advocate a particular result or outcome
with respect to any application by that applicant. For purposes of this subdivision
(D) and subdivision (E) of section 2.60.040, "advocating a particular result or
outcome with respect to an application" means influencing, encouraging, or
attempting to influence or encourage any other individual official to vote, or be
more disposed to vote, in a particular manner with respect to an application. Such
an official shall disclose the nature of his/her interest related to the applicant on
the record of each proceeding before him/her in the action in question, and recuse
himself/herself from voting with respect to said action.
(F) There shall be no conflict of interest requiring disclosure or disqualification under
this Chapter in relation to an official's service on any board, commission, or other
body, provided that the official in question is appointed to the service in question
by the City Council.
(G)An official who has a non-financial conflict of interest as defined in this section
2.60.040 does not have the duty to leave the room when an action wherein
he/she has the conflict in question is considered.
t+w
CITY OF PALM SPRINGS PUBLIC INTEGRITY DISCLOSURE
tOroi
Why Must I File?
Your position requires you to file this Public Integrity Disclosure Form regarding potential conflicts
of interest you might have under Palm Springs Municipal Code Chapter 2.60. This form will assist
you identifying and avoiding conflicts between official duties on the one hand, and other legal
duties you have, or conflicts arising from real property that you rent or lease on the other hand.
The information you provide will become a public record (with the exception of your home address,
which will be redacted). The completed form will be posted on the City's website for all elected
officials. Some information required by this form may also be required in your form 700. Please
ensure that the information you provide is complete and accurate.
When Must I File?
New Official: The report is due within 30 days of your assuming a position designated for filing,
unless the City requests the report earlier or grants you a filing extension.
Annual Filer: The report is due no later than the end of the first business day in April, unless the
City grants you an extension.
Update Filer: The report is due no later than 30 days after the end of a quarter when the reportable
change take place unless the City grants you an extension.
What is the Reporting Period?
New Official: Report the required information for the 12 months preceding your filing of this form.
Annual Filer: Report the required information for the preceding calendar year (January 1 —
December 31).
Update Filer: Report changes that took place during the prior quarter.
What if I Have Questions?
If you have any questions about how to complete this form, please contact:
City Attorney, Edward Z. Kotkin (email: Edward.Kotkin(cD-palmspringsca.gov)
PENALTIES
Falsification of information or failure to report information required to be reported
may subject you to administrative action by the City.
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PUBLIC INTEGREITY DISCLOSURE REPORT
Name (Print last, first, middle initial) E-mail Address
Position/Title
Address
Work Phone Reporting Status If New Official, Date of Election or
New Official Appointment:
Annual (mm/dd/yy)
Update
Reportable Information — Every official shall disclose each and all of his/her interests, wherein
he/she serves as a voting member of a board of directors of a non-profit entity without
compensation, as an attorney or accountant for such an entity who provides pro bono services,
or as the trustee of a charitable trust.
Organization: Type of organization: Position: No
include the address, city and state where the longer
headquarters of the organization is located) held:
1 ❑Voting Board Member ❑
❑ Attorney
❑ Accountant
2 ❑ Voting Board Member ❑
❑ Attorney
ClAccountan
3 ❑ Voting Board Membe ❑
❑ Attorney
❑ Accountant
4 ❑ Voting Board Member ❑
❑ Attorney
❑ Accountant
5 ❑ Voting Board Membe ❑
❑ Attorney
❑ Accountan
6 ❑ Voting Board Member
❑ Attorney
❑ Accountant
Check here if additional pages attached.
Reportable Information — Every official shall disclose each and all of his/her rented or
leased interests in real property located in the City of Palm Springs.
Property Address: Type of Property: Term of Rental No
Agreement/ longer
Lease: held:
1 ❑ Home/Residence
❑ Business/Commercial El
❑ Investment/Other
2 ❑ Home/Residence ❑
❑ Business/Commercial
❑ Investment/Other
3 ❑ Home/Residence ❑
❑ Business/Commercial
❑ Investment/Other
4 ❑ Home/Residence ❑
❑ Business/Commercial
❑ Investment/Other
5 ❑ Home/Residence ❑
❑ Business/Commercial
❑ Investment/Other
6 ❑ Home/Residenc ❑
❑ Business/Commercial
❑ Investment/Other
❑Check here if additional pages attached.
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF
CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT.
Signature of Disclosing a Date
On the basis of information contained in this report, I conclude that the filer is in
compliance with Palm Springs Municipal Code Section 2.60, except as noted in the
"comments" box below.
Comments:
Signature and Title of Agency's Final Reviewing Official