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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