San Clemente City Council members Tuesday did away with the city’s code of ethics -- which had been in place for more than a decade – in response to a spate of ethics complaints filed against city officials in the run-up to last year’s election.
The ethics code included a policy for elected officials passed in 2004; and one for employees passed in 2006. It allowed any person to file a complaint with the city on issues ranging from conflicts of interest to inappropriate uses of city resources.
Once a complaint was filed, the policy required the city clerk to put it on the next city council meeting agenda. If council members determined that a violation occurred, they’d appoint an independent hearing officer, who had subpoena power, to conduct an investigation.
Supporters of the policy say it created an important avenue for residents to directly and publicly confront officials about alleged violations. Its detractors say it was vague, confusing and put council members in the awkward position of investigating themselves.
Council members voted 4-0, with councilman Chris Hamm absent, to repeal the policy in its entirety and replace it with a webpage explaining the role of local and state law enforcement in pursuing ethics violations, and instructions on how to file a complaint.
Councilman Tim Brown, who proposed the repeal, said the lack of clarity about the policy has created more problems than it has solved. “It’s such a cause of dissent, and it’s so vague that it…erodes the public trust, by constantly having ethics complaints,” Brown said.
Overhauling the policy, which is not up-to-date with state ethics laws, would cost at least $20,000, according to an estimate by City Attorney Scott Smith.
“We’re talking about more legal bills to have to bring our codes up to current standards, versus…removing ourselves from being…in the middle of someone making a complaint about us,” said Councilman Steven Swartz. “It seems like we [should] take ourselves out of the formula.”
Meanwhile, Jim Bieber, a resident and communications consultant involved in some of the complaints, said Tuesday’s action showed that council members don’t want to be held accountable.
“[The policy] provided great transparency in that it allowed the public to see their elected officials on display,” Bieber said. “Their solution for how to deal with ethics complaints is to abolish the public’s ability to file them.”
The ethics policy had never seen so much action as it did in 2016, when council members were forced to publicly discuss four complaints, including one that accused Mayor Kathy Ward of misusing city resources.
According to the complaint, Ward used city staff, including City Manager James Makshanoff, to help her write an editorial for the San Clemente Times that criticized a group of residents gathering signatures for a petition to move the city to by-district elections.
Ken Royal, the pro-districting advocate who filed the complaint, argued Ward used city resources for political purposes, to oppose the districting effort.
“Ward used taxpayers’ dollars and city staff as her own personal political consultants to smear members of the public and their campaign efforts in support of a ballot measure to create district voting,” the complaint states.
Per the city’s policy, the complaint was put on the July 5, 2016 meeting agenda and Ward’s colleagues were tasked with determining whether to call for a formal investigation into the incident.
At the hearing, Ward denied violating the ethics ordinance and council members opted not to pursue the matter.
Bieber later filed a complaint about the incident to the state Fair Political Practices Commission (FPPC), but the complaint was rejected, according to FPPC spokesman Jay Wierenga.
Smith, a contract city attorney with Best, Best, & Krieger who has represented the city for the past two years, said when the first complaint was filed last year, both he and City Clerk Joanne Baade were unsure how to handle it.
The policy does not prescribe any consequences or recourse for ethics violations, and does not specify any budget or timeline for investigations.
Several aspects of the policy are vague and "totally redundant” with existing state law and separate city policies and procedures negotiated with the city employees’ union, Smith said.
For example, the code of ethics requires that complainants’ names be kept confidential, but the city’s personnel rules give employees the right to confront their accuser.
The county district attorney and state attorney general, along with the FPPC, already have jurisdiction over ethics violations.
The requirement that complaints be immediately placed on the next council meeting also created problems with the state’s open meetings law, which requires agendas to be posted 72 hours in advance, Smith said.
“If [the complaint] is filed the day or weekend before, how do we do that and comply with state law?” he said.
Moreover, the fact that the council would be tasked with reviewing ethics complaints made by its members is “odd, if you think about it,” Smith told council members.
Bieber agreed that the policy was flawed, but that in losing its ethics policy, the city lost an important public exercise.
“From the four complaints that came in, they just could not bring themselves to bring in someone independent of themselves to look at it,” Bieber said. “That kind of speaks to the character of your elected official…whether they’re gutsy enough to hold their colleagues accountable.”
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