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SUMMARY
CITY COUNCIL STAFF REPORT
October 4, 2017
UNFINISHED BUSINESS
IMPLEMENTATION UPDATE AND PLAN,
COUNCIL SUBCOMMITTEE REPORT, ETHICS AND TRANSPARENCY
David H. Ready, City Manager
Edward Z. Kotkin, City Attorney
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), (ii) 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:
htto://www.DalmsDrinasca.aov/aovernment/mavor-city-council/ethics-transoarencv-
aovernment-reform-task-force-recommendations.
ITEM NO. 4 C j
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, (ii) is responsible or accountable, in that
role, for the general well-being of that person, company or entity,
2
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.
3
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:
httD://www.r)almsDrinasca.aov/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.
V
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.
5
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 (10)
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.
go
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.r)almsr)rinasca.aov/aovernment/der)artments/finance-
treasurv/budaet/ovenclov-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.
City Council Staff Report
October 4, 2017 -- Page 8
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
contribution/donation, 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.
City Council Staff Report
October 4, 2017 -- Page 9
Implementation 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.
Edward Z. Kotkin, City Attorney
Attachments: None
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David H. Ready, Esq., Ph ity anager