HomeMy WebLinkAbout2021-11-16; City Council; ; Approval of City Council Policy No. 92 – Ex Parte Communications and Approval of City Council Code of Ethics & Public Service ValuesMeeting Date: Nov. 16, 2021
To: Mayor and City Council
From: Scott Chadwick, City Manager
Staff Contact: Cindie K. McMahon, Assistant City Attorney
cindie.mcmahon@carlsbadca.gov, 760-434-2891
Sheila Cobian, Legislative & Constituent Services Director
sheila.cobian@carlsbadca.gov, 760-434-2820
Subject: Approval of City Council Policy No. 92 – Ex Parte Communications and
Approval of City Council Code of Ethics & Public Service Values
District: All
Recommended Action
1.Adopt a resolution approving City Council Policy No. 92 - Ex Parte Communications.
2.Adopt a resolution approving City Council Code of Ethics & Public Service Values.
Executive Summary
The City Council’s ad hoc Carlsbad Municipal Code and City Council Policy Update
Subcommittee wrote a new City Council Policy regarding ex parte communications for the City
Council’s consideration (Exhibit 1 – Attachment A). Four votes of the City Council are required
to adopt a new City Council policy.
The subcommittee also recommended that the full City Council hold a workshop to discuss and
develop a City Council code of ethics. With the assistance of facilitator JoAnne Spears of S2
Ethics Strategies, the City Council developed a draft Code of Ethics & Public Service Values for
the City Council’s consideration (Exhibit 3 – Attachment A).
Discussion
Background
The ad hoc Carlsbad Municipal Code and City Council Policy Update Subcommittee was created
on July 23, 2019, to work on a comprehensive update of the city’s Municipal Code and City
Council policies. The subcommittee assisted staff from the City Attorney’s Office and City
Manager’s Office with recommendations for the update and review of policies. In 2020 and
2021, the subcommittee was comprised of Mayor Pro Tem Blackburn and former City Council
Member Schumacher. On July 20, 2021, the City Council voted to temporarily suspend the
subcommittee until the District 1 City Council seat was filled. On September 28, 2021, the City
Council decided to terminate the subcommittee.
Nov. 16, 2021 Item #4 Page 1 of 16
Ex parte communications policy
Before its suspension, the subcommittee worked on developing a City Council Policy regarding
ex parte communications. Ex parte, Latin for “on one side only,” or “by or for one party,” is an
oral or written communication made without proper notice to all parties and not on the public
record from an interested person outside the decision-making agency to a member or an
employee of an agency involved in the decision-making process.
The subcommittee members agreed that ex parte communications can be an area of confusion
and inconsistency and felt that creating a City Council Policy on the topic would provide clarity
and consistency.
The subcommittee approved a new City Council policy on ex parte communications. The
proposed policy was drafted with the following objectives in mind:
• Provide a clear definition of ex parte communications
• Encourage open and transparent decision making
• Discourage ex parte communications
• Establish procedures for disclosing ex parte communications when they do occur
The City Attorney’s Office made a few revisions to the proposed policy after it was approved by
the subcommittee. These revisions were not reviewed or approved by the subcommittee and
they are highlighted in Exhibit 2.
City Council Code of Ethics & Public Service Values
On May 6 and June 29, 2021, the City Council participated in facilitated workshops to develop a
City Council Code of Ethics & Public Service Values. At those meetings, the City Council
determined the code’s scope and application and discussed the values of integrity, respect,
fairness, compassion and responsibility, and how they could be represented in an ethics code.
In addition, at its meeting of Sept. 21, 2021, the City Council unanimously voted to direct staff
to add to the draft City Council Code of Ethics the requirement that City Council members
maintain open communication with other City Council members when speaking or making
presentations in other City Council members’ districts. This addition is reflected under the
section titled Value: Responsibility.
Options
Adopting City Council Policy No. 92 would provide clear direction to decision makers and
establish a consistent procedure for handling ex parte communications.
Approving the City Council Code of Ethics & Public Service Values memorializes the City Council
discussion and direction to staff that took place on May 6 and June 29, 2021.
Staff do not see any potential drawbacks to either proposed action.
Fiscal Analysis
There is no fiscal impact associated with the recommended actions.
Nov. 16, 2021 Item #4 Page 2 of 16
Environmental Evaluation
This action does not require environmental review because it does not constitute a “project”
within the meaning of the California Environmental Quality Act under California Public
Resources Code Section 21065 in that it has no potential to cause either a direct physical
change in the environment or a reasonably foreseeable indirect physical change in the
environment.
Public Notification
This item was noticed in accordance with the Ralph M. Brown Act and available for viewing at
least 72 hours prior to the meeting.
Exhibits
1. City Council resolution approving City Council Policy No. 92 - Ex Parte Communications
2. Revisions to proposed new City Council Policy on ex parte communications showing
revisions made to the policy that were not reviewed by the subcommittee
3. City Council resolution approving City Council Code of Ethics & Public Service Values
Nov. 16, 2021 Item #4 Page 3 of 16
City Council Policy Statement No. 92
Nov. 16, 2021
Page 2
6. For quasi-judicial proceedings involving land use decisions, independent site visits by a
decision maker may be useful for the decision-making process. In such cases, the site
visit should be disclosed at the public hearing and, when possible should not occur while
a project proponent, opponent, or other interested party is present. If a project
proponent, opponent or other interested party is present during the site visit, the
substance of any communications with the party during the site visit should also be
disclosed at the public hearing.
7. When an ex parte communication does occur, information regarding the
communication should be fully disclosed so that all interested parties are aware of the
communication and have an opportunity to explain or rebut the information as
necessary.
Procedure
A. This policy shall apply to the mayor, city council members, and members of all boards
and commissions when serving as decision makers in any quasi-judicial proceeding.
B. The city clerk in conjunction with the city manager and city attorney will identify agenda
items involving quasi-judicial decisions on the agenda for the City Council or any board
or commission.
C. The presiding officer at a public hearing involving a quasi-judicial decision will ask each
member of the decision-making body to disclose any ex pa rte communications prior to
the time for receipt of public comment.
D. Disclosure of ex parte communications may be made verbally and should include the
following information as applicable:
a. The type of communication, including whether any written or other materials
were provided to the decision maker;
b. When and where the communication took place;
c. Who was involved in the communication with the decision maker; and
d. The substance of the information that was disclosed to the decision maker.
E. If a decision maker received any written or other materials as part of an ex parte
communication, those materials should be provided to the City Clerk's Office and
included in the record of the proceedings. If the materials are no longer availab.le at the
time of the hearing, the decision maker should provide the City Clerk's Office with a
description of the materials received and an explanation of why they are no longer
available to include in the record of the proceedings.
F. Ex parte contacts occurring after a public hearing is closed and before a final decision is
rendered are prohibited because there is no opportunity for rebuttal.
Nov. 16, 2021 Item #4 Page 6 of 16
Subject: Ex Parte Communications
Purpose
Principles of fundamental fairness and due process of law require that city decision makers
conduct quasi-judicial proceedings in an open, objective, and impartial manner, free of undue
influence and the abuse of power and authority. Communications with parties outside of an
official proceeding can lead to doubts about the fairness of the proceeding and the impartiality
of the decision makers. Establishing a policy disfavoring such communications and providing for
clear procedures regarding such communications when they do occur will promote impartial,
fair and transparent decision-making.
Statement of policy
1. This policy applies to quasi-judicial proceedings. A quasi-judicial proceeding is a
proceeding in which the decision affects the specific rights or interests of an individual
or entity based on the decision makers’ application of the governing law to specific
facts. The existence of a statute or ordinance mandating notice and a hearing is an
indication the proceeding is quasi-judicial. Quasi-judicial proceedings include
proceedings involving land use permits, license revocations, and nuisance abatements.
1.2. This policy does not apply to legislative acts. A legislative act involves the
establishment of a regulation or policy to be applied in all future cases and the ways and
means of accomplishing it. Legislative acts include the adoption of ordinances or land
use plans, such as general plans or specific plans.
2.3. Parties appearing before the city for a quasi-judicial proceeding deserve to have
their issues heard in an open, transparent and fair process.
3.4. Ex parte communications are substantive oral or written communications with a
decision maker regarding a quasi-judicial proceeding which take place outside of a
noticed hearing on the matter. Ex parte communications can be written
communications received by a decision maker, substantive conversations with a
decision maker, or independent fact-finding by a decision maker, including site visits, by
a decision maker. Ex parte communications may be received from a developer, a
project proponent or opponent, or any other interested party.
4.5. Ex parte communications are disfavored and should be avoided whenever
possible because they can bring into question the impartiality and fairness of the
hearing process. This is especially true of ex parte communications that suggest a
decision maker has assisted project proponents or opponents in formulating and
advocating their positions.
Exhibit 2
Nov. 16, 2021 Item #4 Page 7 of 16
5.6. For quasi-judicial proceedings involving land use decisions, independent site
visits by a decision maker may be useful for the decision-making process. In such cases,
the site visit should be disclosed at the public hearing and should not occur when a
project proponent or opponent, or other interested party is present.
6.7. When an ex parte communication does occur, information regarding the
communication should be fully disclosed so that all interested parties are aware of the
communication and have an opportunity to explain or rebut the information as
necessary.
Procedure
A. This policy shall apply to the mayor, city councilmembers, and members of all boards
and commissions when serving as decision makers in any quasi-judicial proceeding.
B. The city clerk in conjunction with the city manager and city attorney will identify agenda
items involving quasi-judicial decisions on the agenda for the City Council or any board
or commission.
C. The presiding officer at a public hearing involving a quasi-judicial decision will ask each
member of the decision-making body to disclose any ex parte communications prior to
the time for receipt of public comment.
D. Disclosure of ex parte communications may be made verbally and should include the
following information as applicable:
a. The type of communication, including whether any written or other materials
were provided to the decision maker;
b. When and where the communication took place;
c. Who was involved in the communication with the decision maker; and
d. The substance of the information that was disclosed to the decision maker.
E. If a decision maker received any written or other materials as part of an ex parte
communication, those materials should be provided to the City Clerk’s Office and
included in the record of the proceedings. If the materials are no longer available at the
time of the hearing, the decision maker should provide the City Clerk’s Office with a
description of the materials received and an explanation of why they are no longer
available to include in the record of the proceedings.
F. Ex parte contacts occurring after a public hearing is closed and before a final decision is
rendered are prohibited because there is no opportunity for rebuttal.
Nov. 16, 2021 Item #4 Page 8 of 16
RESOLUTION NO. 2021-253
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, APPROVING A CITY COUNCIL CODE OF ETHICS & PUBLIC
SERVICE VALUES
EXHIBIT 3
WHEREAS, on July 23, 2019, the City Council adopted Resolution 2019-133 creating the ad hoc
Carlsbad Municipal Code and City Council Policy Update Subcommittee (Subcommittee) to assist staff
with a comprehensive update to the city's Municipal Code, and expanded the update to include both
the Code and City Council Policies; and
WHEREAS, the Subcommittee recommended that the full City Council hold a workshop to
discuss and develop a City Council Code of Ethics; and
WHEREAS, on May 6, 2021, the City Council held a facilitated workshop to discuss
communication, leadership and ethics; and
WHEREAS, on June 29, 2021, the City Council held a second facilitated workshop to finalize the
components of a City Council Code of Ethics & Public Service Values;
WHEREAS, the City Council agrees that approving a City Council Code of Ethics & Public Service
Values will:
• Encourage the highest standards of behavior by City of Carlsbad elected officials
• Make implicit norms of leadership and communication explicit
• Provide an ongoing source of guidance to City of Carlsbad officials in their day-to-day service
to the city
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as
follows:
II
II
II
II
II
1. That the above recitations are true and correct.
2. The City of Carlsbad Council Code of Ethics & Public Service Values (Attachment A) is
approved.
Nov. 16, 2021 Item #4 Page 9 of 16
City of Carlsbad
City Council Code of Ethics & Public Service Values
Preamble
The effective operation of democratic institutions requires that public officials have the trust
and respect of the communities they serve. Accordingly, the City Council of the City of Carlsbad
has adopted this code to:
• Encourage the highest standards of behavior by City of Carlsbad elected officials;
• Make implicit norms of leadership and communication explicit; and
• Provide an ongoing source of guidance to City of Carlsbad officials in their day-to-day
service to the City.
To this end, the City of Carlsbad City Council has adopted this code relating to values-based
decision-making. As part of their service to the City of Carlsbad, individual City Council
Members agree to practice the values described in this code in their day-to-day service to the
City of Carlsbad.
The City Council further directs that this code be:
• Distributed to individual City Council Members for signature and, once signed, posted on
the City Council section of the city website;
• Included in the materials provided to candidates for City Council;
• Covered in newly elected officials’ orientation materials and training (including AB 1234
training); and
• Agendized for discussion annually as an opportunity for City Council review, self-evaluation,
discussion, and revision, if appropriate.
Adopted by the City of Carlsbad City Council on Nov. 16, 2021.
Value: Respect
1. As a leader of the community, I model civility. In practice, this means that:
• I treat my fellow officials, staff and the public politely, professionally and with an
appreciation for our common humanity, even when we disagree on what is best for
the community.
• When I explain my disagreement with a colleague or City Council decision to others,
I do so in a way that focuses on the merits of an issue and recognizes that
reasonable people of differing interests and/or good intentions can disagree on
what is best for our community.
• When my perspective doesn’t prevail, in discussing the outcome in the community, I
frame my colleagues’ differing positions in the spirit of moving onward from the
Attachment A
Nov. 16, 2021 Item #4 Page 11 of 16
decision and in the same way I would want my colleagues to frame my own differing
positions.
• I contribute to a culture and practice of active acknowledgement by recognizing
colleagues and persons who model values-based decision-making under challenging
circumstances.
• I refer to my colleagues on the City Council by their formal city titles (for example,
“Council Member,” “Mayor,” etc.), and/or appropriate gender pronouns unless an
individual has expressed a preference for an alternative title (for example,
“Reverend,” “Dr.,” etc.)
2. I invite and respect public input to inform my sense of what is in the community’s best
interests and incorporate it in the decision-making process to ensure meaningful public
engagement. In practice, this means that:
• I am attentive and engaged in meetings.
• I welcome diverse perspectives and consider them in my decision-making.
• I act in ways that help people feel valued when they participate in our city’s
decision-making processes.
• As an elected official, I gather public input and information to make the best
decision with a spirit of curiosity and inquiry.
• I involve all appropriate stakeholders and the public in general in meetings affecting
city decisions.
• I strive to make people feel heard, by listening carefully, sharing what I think I have
heard, asking clarifying questions, and seeking to understand the interests
underlying their positions.
3. My actions reflect the belief that elected officials, city staff and others who serve the
agency are on the same team in service to the community, even though we have
different roles. In practice, this means that:
• I act on the understanding that staff’s role is to provide objective information and
analysis to inform the decision-making process within the resources that they have
available, even if this information and analysis don’t support the decision I believe is
best.
• When I know I will be asking one or more questions on an agenda item, I alert the
City Manager or City Attorney as appropriate in advance so staff can be prepared to
provide the most complete answer to inform both the City Council and the public.
• I ask questions to authentically deepen my understanding of staff analysis and its
factual underpinnings, as well as inform the public; I argue the merits of decisions
with my fellow City Council Members.
• I communicate any concerns I have about city functions, staff analyses or individual
staff performance to and through the city manager.
Nov. 16, 2021 Item #4 Page 12 of 16
• I act on the understanding that I am part of a group decision-making process and
that staff take direction from City Council collective action.
Value: Responsibility
1. I model and promote clear communication. In practice, this means that:
• I support defining important words, terms, and context, avoiding jargon (including
use of acronyms) and using examples.
• I ask questions to test any inferences and assumptions I may be inclined to make
based on what I am hearing people say; I support others doing likewise.
• I am direct and transparent in explaining my reasoning, interests, goals and
intentions to help others understand what I am saying and why. I contribute to an
interpersonal environment that supports such transparency and forthrightness from
others to help move conversations forward with the goals of finding common
ground and maximizing the public’s best interests.
• I verify (fact check) statements reportedly made by a colleague directly with that
colleague.
• I make myself available for one-on-one conversations about the values in this code.
• I am transparent and publicly disclose relevant information.
2. I work collaboratively to improve our community’s quality of life and promote the
public’s best interests. In practice, this means that:
• I gain value from diverse perspectives and consider them in my decision-making.
• I recognize that I am an agent for the democratic process, not the owner of
authority.
• I seek information from community members and my colleagues about what
qualities an acceptable solution might have to a problem (their interests), in addition
to hearing what their positions are.
3. I consider the larger picture in my decision-making and actions. In practice, this means
that:
• I consider the short-, medium-, and long-term effects of my decisions and actions.
• I strive to foster effective relationships with state, regional and other public agencies
and their officials.
4. I am accountable for my actions and words. In practice, this means that:
• I am prepared to make unpopular decisions when my sense of the public’s best
interests requires it.
Nov. 16, 2021 Item #4 Page 13 of 16
• I take responsibility for my actions, even when it is uncomfortable to do so. This
includes apologizing when I realize that my behavior has fallen short of the
aspirational standards in this code.
• As part of my commitment to growth and learning, I am open to constructive
feedback from my colleagues and others—ideally first expressed on a human-to-
human (one-on-one) basis--when they think I may have acted in a way that falls
short of my goal of the values-based decision-making and the behaviors described in
this code.
• I keep open communication with my fellow City Council members when speaking or
making presentations in other City Council members’ districts.
• I will review these code provisions with my colleagues at least annually, looking for
opportunities to refine, improve and/or update the provisions given current
developments and dynamics.
Values: Compassion and Fairness
1. I am empathetic and care about the needs of the public, my colleagues and staff. In
practice, this means that:
• When interacting with others, I put myself in others’ shoes, understanding that
people have different lived experiences.
• I am sensitive that those interacting with public officials, whether staff or
community members, can be intimidated by public officials and public agency
processes. I try to make interactions with the City Council as stress-free as possible.
• My actions reflect an awareness that people respond to both verbal (including tone
of voice) and non-verbal cues; I also recognize that some people, including me, can
interpret verbal and non-verbal cues differently, depending on the attributes of the
source.
• I use active listening techniques (repeating back, follow-up questions, taking notes
as appropriate, and other verbal and non-verbal cues) to demonstrate that I am
hearing and listening to what people are saying.
• I carefully consider all colleague’s and public’s perspectives and input when making
decisions.
• I value the personal experiences that contribute to my colleagues’ and the public’s
views on a given matter.
• I initiate one-on-one conversations with those who have different positions on
issues to better understand those positions; I look for opportunities to identify
shared values and interests.
• I view the opportunity to provide feedback to my colleagues relating to values-based
decision-making—ideally first on a human-to-human (one-on-one) basis—as
opportunities for mutual understanding, growth and learning.
Nov. 16, 2021 Item #4 Page 14 of 16
• I understand that everyone makes mistakes and, in the spirit of collegiality, I accept
apologies when they are offered. I set aside grudges that may be tempting to hold.
• I look for opportunities to celebrate generative, positive examples of the application
of this code.
2. I embrace our community’s and city team’s diversity. In practice, this means that:
• I consider the diversity, equity and inclusion implications of policy decisions I make.
• I participate in regular educational activities to enhance my insights into a wide
variety of diversity, equity and inclusion issues.
3. I promote fair and consistent processes. In practice, this means that:
• I make decisions on policies, hiring and contracting prioritizing merit and value to
the community and equitable practices rather than favoritism and/or family or
personal relationships.
• I honor the law’s and the public’s expectation that city policies will be applied
consistently.
• I am impartial in my decision-making and do not favor those who either have
helped me (or are in a position to do so) and disfavor those who have not (or are
not).
• I make it a practice to communicate equitably with members of the community,
irrespective of their influence, power or campaign donations.
• I make a conscious effort to avoid favoritism or bias (including unintended bias) in
my actions and decisions.
Value: Integrity
1. I am truthful with my colleagues, the public and others. In practice, this means that:
• I carefully consider any promise I make and then I keep it; I make only promises I
believe are realistic.
• I treat information I receive with a spirit of inquiry and presumed positive intent; I
fact-check information as necessary with colleagues, staff and others.
• I honor commitments I and my agency make.
• I credit others’ contributions to moving our community’s interests forward.
• I only disclose confidential information when I am authorized to do so.
• I explain the official positions of the city to the best of my ability when I am
authorized to do so. I am clear in stating my own views that these views may or
may not represent the city’s position.
Nov. 16, 2021 Item #4 Page 15 of 16
2. My actions are consistent with my words. In practice, this means that:
• I follow through on the commitments I make.
• Building and maintaining trust is an ongoing process. I act in ways that promote
the public’s trust in both 1) the city as an expression of community democratic
processes and 2) my own role as a member of the city’s governing body.
3. I comply with both the letter and the spirit of laws that are designed to promote public
trust and confidence in our agency’s decision-making. In practice, this means that:
• I demonstrate, by my actions and my words, that I am a guardian of the public’s
trust and confidence in the city, its elected officials and staff.
• I use public resources for public purposes, not for private benefit or political
purposes.
• I decline and do not seek gifts, favors, and other special treatment.
• I make decisions based on my sense of the public’s best interests. In so doing, I am
mindful of the nonpartisan nature of city, county, school and judicial offices
provided for in California’s Constitution.
City Council Member Signatures:
Mayor Hall
City Council Member Blackburn
City Council Member Bhat-Patel
City Council Member Acosta
City Council Member Norby
Nov. 16, 2021 Item #4 Page 16 of 16