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°�.FOAN�P CITY COUNCIL STAFF REPORT
DATE: June 7, 2017 Unfinished Business
SUBJECT: REPORT BY AD HOC CITY COUNCIL SUBCOMMITTEE ON ETHICS,
TRANSPARENCY AND GOVERNMENT REFORM
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), formed a Task
Force that includes eight (8) working subcommittees comprised by local residents. Each
of these working subcommittees has tendered a final proposal to the Subcommittee .
The Subcommittee has compiled, reviewed and posted the task force proposals, dated
April 24, 2017 to the City's website. http://www.palmspringsca., ov/governmenUmayor-
city-council/ethics-transparency-government-reform-task-force-recommendations. This
staff report is the Subcommittee's second report back to the full City Council. After
receiving input from Council at a prior meeting, this report states the Subcommittee's
initial recommendations for City implementation of the task force proposals as well as
additional proposals from the Subcommittee. The charges of the working
subcommittees included ethics/conflicts of interest, transparency, city grants (economic,
non-profit and event), communications, diversity/inclusive government, election reform,
campaign finance reform, and board member/commissioner orientation. This report
addresses the first two areas, ethics and transparency, and touches incidentally on
campaign finance reform. As will be detailed at the time this staff report is delivered, two
(2) corrections to the report previously published are reflected in this update.
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.
ITEM NO.
City Council Staff Report
June 7, 2017 -- Page 2
Report, Council Subcommittee on Ethics and Transparency
STAFF ANALYSIS:
The Subcommittee opines that the City should take action consistent with the following
points. In many instances the proposed action exceeds the requirements of State law.
• 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.
• "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.
This exceeds the requirements of State law.
• 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 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. It should be noted that duties with respect to ethics and conflict of interest
rest with each public official, and that State law specifically provides that advice
from a City Attorney or City Manager is not a defense to any violation by an
official. The Fair Political Practices Commission is the only entity that can
provide written advice upon which an official may rely.
• 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.
• Create a confidential public integrity "whistleblower' hotline to be managed by the
1 Reasonable minds might differ as to the definition of a "special fiduciary interest," and the
Code should contain a concrete and simple statement that ensures the public that officials will
not have more than one "master" entitled to a duty of loyalty and care with respect to
governmental decisions.The ideal bright-line definition will transcend financial matters, and
incorporate clearly identifiable professional responsibilities and duties of loyalty. For example,
voting membership on the board of directors of a charitable organization would represent a
special fiduciary interest.
02
City Council Staff Report
June 7, 2017 -- Page 3
Report, Council Subcommittee on Ethics and Transparency
City Attorney's office 2
• 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.
• 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.
• Officials required to file Form 700 should also file an annual City of Palm Springs
SFI Disclosure Form, concurrently with theirs Form 700.
• 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.
• Each Palm Springs official's Form 700 and SFI Disclosure form will be posted on
the City Website.
• 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.
• 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.
• 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 the
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.
z If there is a complaint about the City Attorney, that complaint will go directly to the Public
Integrity Subcommittee Members.
03
City Council Staff Report
June 7, 2017 -- Page 4
Report, Council Subcommittee on Ethics and Transparency
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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
04
City Council Staff Report
June 7, 2017 -- Page 5
Report, Council Subcommittee on Ethics and Transparency
the utility of the City's website
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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
05
City Council Staff Report
June 7, 2017 -- Page 6
Report, Council Subcommittee on Ethics and Transparency
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.
• All sales of City property, including without limitation Successor Agency property
shall be put out for competitive bid.
This initial report does not address all of the work of the task force working
subcommittees. The Council subcommittee will return to the full Council with additional
recommendations at an upcoming meeting.
ALTERNATIVES:
Reject the 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.
` J
Edward Z. Kotkin, City Attorney Marcus L. Fuller, Assistant City Manager
David H. Ready, Esq., Ph ., y Manager
Attachments: None
46
Kathie Hart
From: Jim Van Dyke <jvdpdx@aol.com> .F{1_CFI V ED
Sent: Sunday,June 04, 2017 12:30 PM ITT OF PA H SpRj; ,: .
To: Kathie Hart �O'i
Cc: Chuck Steinman;Wallace (Tom)Skok; Russ Uthe; Geoff Kors JUN -S AN 8: 38
Subject: Staff report OFFICE Cf
Dear Ms. Hart:
Thank you for forwarding the Staff Report regarding recommendations made by the Ethics Subcommittee as part of
the Ethics, Transparency and Government Reform Task Force. I am writing as a member of the Ethics subcommittee
and ask that my comments be included as part of the record before the City Council when it considers the staff report
as I am out of state and will not be able to attend.
Comments on Staff Report
Thanks to Mayor Moon and Council Member Kors for creating the Ethics, Transparency and Government Reform
Task Force and for seeking input from community members on these issues. My thanks also is extended to the entire
City Council and to staff for considering our efforts. It was a pleasure to participate on the Ethics Subcommittee.
In regard to the Staff Report, I write to suggest that ethics compliance or complaints of ethics violations not be
administered by the City Attorney's (CA) office because the dual roles of investigator and advisor can create potential
structural conflicts.
For example, assume a Council member seeks advice from the CA regarding an interpretation of the state or local
ethics code and the Council member declines to take it because the law is unclear or the Council member believes the
CA is incorrect.
If a complaint is later submitted to the CA regarding the Council member's action the City and the CA will be put in
an awkward position because of the privileged nature of the earlier CA-Council member conversation.
As you are aware, facts disclosed to the CA by the Council member would ordinarily be covered by the attorney-
client privilege. Therefore, that conversation could not be used in the CA's subsequent investigation of the same
incident unless they could be independently determined, even if those facts might be crucial.
I believe that Council members and staff would be less likely to seek advice or be candid with someone who might
investigate them later. That is just the opposite of what the City would want.
There are times, of course, when it may be helpful to have the CA investigate a particular matter. But generally, those
investigations are for the purpose of providing legal advice to the client, not for later prosecuting a client.
I recommend ethical complaints be prosecuted or investigated by Human Resources, the City Manager, or other
administrative entity to avoid these structural issues. The Ca can always provide legal advice to those persons as may
be required.
Thank you for the opportunity to provide this input.
James H. Van Dyke
Jvdpdx cr aol.com
Chuck Steinman, Sierra Way, Palm Springs, CA 92264/c.e.steinman@comcast.net
June 3,2017
Comments and Questions Regarding the Initial Staff Report, Council
Subcommittee on Ethics and Transparency, May 17, 2017
As a member of the Ethics group of the ad hoc Ethics, Transparency and Government Reform
Task Force, I would like to commend City Council Subcommittee members Mayor Robert Moon
and Councilmember Geoff Kars, and City Attorney Edward Z. Kotkin for initiating the
recommendations on the Ethics and Transparency areas in response to our Ethics group's
recommendations. In moving forward, however, clarification will be needed with regard to
several items in the staff report's recommendations:
(1) Update the City's Local Conflict of Interest Code with regard to conflicts of interest.
Will Palm Springs elected and other officials (Mayor, City Council, City Manager, City Attorney,
Planning Commissioners, etc.) as specified in §87200 of the Political Reform Act of 1974, as
Amended, be subject to local review and enforcement in addition to that which may be
required by the State Fair Political Practices Commission?
(2) Designate the City Attorney to be the point person for the City on ethics, conflict of
interest,transparency and related issues.
What resources will be made available to the City Attorney for monitoring and investigating
violations?Will he have subpoena powers? Will the City Attorney serve as Ombudsman or
appoint someone to be responsible for investigating and adjudicating identified violations or
will he have only an advisory role?
(3) Create a Public Integrity City Council Standing Committee.
It is not clear whether this will be continuation of the current Governmental Reform, Ethics and
Transparency City Council Subcommittee by upgrading its status from ad hoc to standing, or an
independent commission appointed by City Council, as recommended in our Ethics report. In
either case, will this body be responsible for investigating and adjudicating identified violations
or will it just have an advisory role?
(4) Create a confidential public integrity"whistleblower" hotline to be managed by the City
Attorney's office.
Will there be an Ombudsman or Ethics Commission, as recommended, to investigate and
adjudicate the complaints or questions received on the "whistle bl owe r" hotline?
(5)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 (S1,000.00) or more for six(6) months prior to, and six(6) months after a
vote on that matter.
Rather than as written for a single contribution,the requirement should be for "cumulative
campaign contributions or donations." And, given that officials are elected for 4 years, why is
the limit for only 6 months rather that for a longer period, such as at least one or more years?
I would welcome the opportunity to further assist the City Council Ethics and Transparency
Subcommittee as you move forward to implement the Staff Report recommendations.
TROLLEY RIDERSHIP
Date
From To BUZZ TROLLEY RIDER COUNT
12/20/2014 12/21/2014 1,053
12/25/2014 12/28/2014 3,269
12/31/2014 1/1/2015 637 New Years Eve Special hours
12/31/2014 1/4/2015 3,778
1/8/2015 1/11/2015 3,8771
1/15/2015'' 1/18/2015 4,983:
1/22/2015 1/25/2015 41174
1/29/2015 2/1/2015 4,299
2/5/2015 2/8/2015 4,559
_
2/12/2015 2/16/2015 6,143!
2/16/2015 660 President's Day Holiday
2/19/2015 2/22/2015 4,893
2/26/2015' 3/1/2015 6,820
3/5/2015 3/8/2015' 5,256
3/12/2015 3/16/2015, 5,678
3/19/2015. 3/22/2015 5,999
3/26/2015 3/29/2015 5,519
4/2/2015 4/5/2015 5,561
4/9/2015 4/12/2015 4,703
4/16/2015 4/19/2015 4,848
4/23/2015 4/26/2015I 4,494 - -- -
4/30/2015 5/3/2015 4,4311
5/7/2015 5/10/20151. 4,404
5/14/2015 5/17/2015 4,605
5/21/2015 5/25/2015 7,494 (5 day weekend)
5/28/2015' 5/31/2015 4,324
6/4/2015� 6/7/2015, 4,353
6/11/2015 6/14/2015 4,042
6/18/2015 6/21/2015 3,898
6/25/2615 6/28/2015 4,6071
7/2/2015 7/5/2015 4,0271
7/9/2015 7/12/2015 5,137'
7/16/2015 7/19/2015 4,449
7/23/2015 7/26/2015 5,294,
7/30/2015 8/2/2015 4,111r
- 8/6/2015' 8/9/2015 4,370
8/13/2015 8/16/2015 4,543
8/20/2015 8/23/2015 4,450
8/27/2015 8/30/2015 3,314
9/4/2015 9/7/2015 5,656 (5 day weekend)
9/10/2015 9/13/2015 3,758
9/17/2015 9/20/2015 4,594
9/24/2015 9/27/2015 4,779
10/1/2015 10/4/2015 4,116
Cgl7`i7
TROLLEY RIDERSHIP
Date
From To BUZZ TROLLEY RIDER COUNT
30/8/2015 10/11/2015 4,944
10/15/2015 10/18/2015 3,794
10/22/2015 10/25/2015 4,156
10/29/2015 11/1/2015 4,749
11/5/2015 11/8/2015 6,650'
11/12/2015 11/15/2015 3,765,
11/19/2015 11/22/2015 4,205
11/26/2015 11/29/2015 3,744
12/3/2015 12/6/2015 3,093
12/10/2015 12/13/2015', 2,931
12/17/2015 12/20/2015j 3,151
12/24/2015 12/2i/2015� 4,147
12/31/2015 1/3/2015 5,014
1/7/2016 1/10/2016 3,505
1/14/2016 1/17/2016 4,385
1/21/2016 1/24/2016 4,369
1/28/20161 1/31/2016 _3,984
2/4/2016 2/7/2016 4,690
2/11/2016 2/15/2016 6,466 includes President's Day
2/18/2016 2/21/2016 5,988
2/25/2016', 2/28/2016 5,627
3/3/20161 3/6/2016 5,748
3/10/2016 3/13/2016 4,945
3/17/2016 3/20/2016 7,036
3/24/2016 3/27/2016 7,032
3/31/2016 4/3/2016 7,498
4/7/2016 4/10/2016 5,124
4/14/2016 4/17/2016 4,491
4/21/2016 4/24/2016 3,936
4/28/2016 5/1/2016 4,598
5/5/2016 5/8/2016 4,335
5/12_/_20_16 5/15/2016 5,296
5/19/20161 5/22/2016 4,407
5/26/2016 5/30/2016 7,556 includes Memorial Day
6/2/2016 6/5/2015 3,559
6/9/2016 6/12/2016 3,555
6/16/2016 6/19/2016 3,235
6/23/2016: 6/26/2016 3,587
6/30/2016 7/3/2016 3,651
7/7/2016 7/10/2016 2,938
7/14/2016 7/17/2016 3,260
7/21/2016 7/25/2016 3,386
7/28/2016 7/31/2016 3,839
8/4/2016 8/7/20161 3,560
TROLLEY RIDERSHIP
Date
From 11 To BUZZ TROLLEY RIDER COUNT
8/11/2016 8/14/20161 3,489,
8/18/2016 8/21/2016 3,539
8/25/2016 8/28/2016 3,432
9/1/2016 9/5/2016 5,628
9/8/2016 9/11/2016 3,936
9/15/2016' 9/18/2016 3,959
9/22/2016' 9/25/2016 4,191
9/30/2016' 10/2/2016'' 4,205
10/6/2016 10/9/2016,' 4,522
10/13/20161 10/16/2016 4,697
10/20/2016 10/23/2016 4,141
10/27/2016 10/30/2016` 4,760,
11/3/2016 11/6/2016 5,435
11/10/2016 11/13/2016 4,392
11/17/2016 11/20/2016 3,727
11/24/2016 11/27/2016 3,295
12/1/2016 12/4/2016 1,744
12/8/2016 12/11/2016 2,727
12/15/2016' 12/18/2016 3,002
12/22/2016j 12/25/2016 2,452
12/29/2016 1/1/2017 4,758
1/5/2017 1/8/2017 3,113
1/12/2017 1/15/2017 2,707
1/19/2017 1/22/3017 2,180
1/26/2017 1/29/2017 3,591
2/2/2017 2/5/2017 3,960
2/9/2017 2/13/2017 4,366
2/16/2017 2/20/2017 4,896 includes President's Day
2/23/2017 2/26/2017 4,785
3/2/2017 3/5/2017 5,069
3/9/2017 3/13/2017 4,501
3/16/2017 3/19/2017 5,223
3/23/2017 3/26/2017 6,319
3/30/2017 4/2/2017 5,259
4/6/2017 4/9/2017 5,489
4/13/2017 4/16/2017 4,019
4/20/2017 4/23/2017 4,351
4/27/2017 4/30/2017 4,605
5/4/2017 5/7/2017 4,784
5/11/2017 5/14/2017 3,960
5/18/2017 5/21/2017! 4,111
5/25.2017 j 5/29/2017 5,154 (Memorial Day Weekend)
TROLLEY RIDERSHIP
Date
----- ------
From To BUZZ TROLLEY RIDER COUNT
TOTAL RIDERSHIP 570,361