Title
Adoption of Resolution Establishing a City Council Policy that a City Council or City Staff Member Who Knowingly Violates the City Charter, an Applicable Criminal Statute or an Applicable Ethical Code of Conduct Shall Not be Entitled to Reimbursement from the City for Legal or Other Fees Arising Out of the Violation. (City Attorney 2310)
Body
To: Honorable Mayor and Members of the City Council
EXECUTIVE SUMMARY
In June 2019, the Alameda County Grand Jury issued a report concerning its investigation of the City of Alameda’s (City) hiring process for a Fire Chief in 2017. The investigation reviewed accusations of undue influence on the former City Manager during that hiring process, in violation of the City Charter. The Grand Jury report states that the City itself undertook an investigation into these accusations and, as a result, two Council members hired personal attorneys to represent them in the City’s investigation and have requested reimbursement from the City for their legal fees. In part, the Grand Jury made a recommendation that the City Council adopt a policy stating that Council members, who knowingly violate ethical codes of conduct or charter provisions, may not seek reimbursement for related legal representation. In response, the City Council directed staff to return with necessary documents to formally adopt such a policy. The resolution adopts such a policy applicable not only to City Council members, but also to City staff.
BACKGROUND
The City Charter provides that the City Manager is to appoint, with limited exceptions, all employees of the City, that no City Council member shall interfere with the City Manager’s execution of the appointment powers, and that a City Council member’s attempt to influence the City Manager in the appointment process subjects the City Council member to removal from office for malfeasance. In 2017, in context of the City Manager’s selection process of Fire Chief, the former City Manager alleged that two Council members had interfered in that process. As a result of these allegations, the City undertook an internal administrative investigation. Two Council members retained outside legal counsel to assist and represent them in the City’s investigation. They subsequently requested reimbursement from the City for the legal fees incurred in such assistance/representation.
Every year the Alameda County Civil Grand Jury issues a report concerning the activities of local governments in Alameda County. Typically, the report identifies activities or policies of local governments that the Grand Jury believes need improvement and the Grand Jury makes recommendations concerning these matters. Local governments to whom such recommendations are made are to provide a timely response to the Grand Jury.
In June 2019, the Grand Jury released a report on its investigation into the City’s hiring process for a Fire Chief. The investigation concerned allegations of undue influence on the former City Manager during the Fire Chief selection process in violation of the City Charter.
The Grand Jury report made several recommendations as a result of its investigation. One such recommendation was that the City Council should adopt a policy stating that Council members, who knowingly violated ethical codes of conduct or charter provisions, may not seek reimbursement for related legal representation. The City Council responded timely to the Grand Jury and directed staff to return to the City Council with necessary documents to formally adopt such policy. Because City staff could also violate certain provisions of the Charter and/or ethical codes of conduct, the Policy has been drafted to be inclusive of both City Council and City staff.
DISCUSSION
The Policy provides: “No Council member nor City staff member shall be entitled to reimbursement from the City for legal or other fees incurred as a result of such person’s knowing violation of the City Charter, an applicable criminal statute, or an applicable ethical code of conduct. “Knowing” is an expression of general, not specific, intent and a person knowingly commits a violation by intentionally engaging in the proscribed conduct; however, it is not required that the person intends to violate the law or an ethical code of conduct, or knows that the conduct is proscribed. The City Council, excluding than any City Council member who has a conflict of interest concerning such reimbursement, may decide whether the City Council member or City staff member requesting or seeking reimbursement knowingly committed the violation or delegate such decision authority to the City Manager, the City Attorney or appointed Special Counsel.”
The tenor of the Policy is modeled after California Judicial Council approved Jury Instruction for criminal matters #250 (CALCRIM 250) regarding applicable state of mind for violations. Where, as here, the definition of the violation consists solely of the description of a particular act, without reference to achieving a further or specific end including terms such as “willfully,” knowingly,” or “intentionally” does not change the calculus. These are terms of general, not specific, intent. Accordingly, “knowingly”, in the context of the Policy, requires only that the person acted intentionally in undertaking the proscribed conduct, it is not required that the person intended to break the law or knew that the conduct is proscribed. See generally, People v. Alvarado (2005) 125 Cal.App.4th 1179, 1188.
The proposed Policy permits the City Council to itself determine whether the City Council member or City staff member requesting or seeking reimbursement knowingly committed the violation or delegate such decision authority to the City Manager, the City Attorney or appointed Special Counsel.
Moreover, the Policy will come into sharper focus if another recommendation of the Grand Jury is implemented, namely, if the City Charter delineates with more specificity the types of conduct that constitute a violation of the City Charter and, in particular, violations concerning the interference with the City Manager’s powers to appoint City employees. The Policy will also come into sharper focus if the City Council adopts an ethical code of conduct, which staff intends to present early in 2020.
ALTERNATIVES
• Establish a City Council Policy that a City Council member or City staff member who knowingly violates the City Charter, an applicable criminal statute, or an applicable ethical code of conduct shall not be entitled to reimbursement from the City for legal or other fees arising out of the violation.
• Do not to adopt this Policy at this time.
• Alter the language in the Policy such that in order to find a violation, and hence deny the reimbursement of the fees, the City Council must find there was a specific intent to violate the applicable law or ethical codes of conduct.
FINANCIAL IMPACT
There is no financial impact in adopting this Policy. Adopting this Policy will provide guidance in the future should there be requests for the City to reimburse a City Council or City staff member for legal fees stemming from allegations that the member had violated the City Charter or an ethical code of conduct.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
This Policy will not alter the Alameda Municipal Code or other policy document and should help deter City Council and staff members from engaging in conduct that would violate the City Charter.
ENVIRONMENTAL REVIEW
Adoption of this Policy is exempt from review under the California Environmental Quality Act as it is not a project under Section 15378 (b)(2) [continuing administrative activities such as general policy making procedures].
CLIMATE IMPACTS
There are no climate impacts to adopting this Policy.
RECOMMENDATION
Adopt a resolution establishing a Policy that a City Council member or City staff member who knowingly violates the City Charter or an ethical code of conduct shall not be entitled to reimbursement from the City for legal or other fees arising out of the violation.
CITY MANAGER RECOMMENDATION
This resolution to establish a policy that a Council Member or City staff member who knowingly violates the City Charter or an ethical code of conduct shall not be entitled to reimbursement from the City for legal or other fees arising out of the violation is consistent with the response to the Alameda Grand Jury.
Respectfully submitted,
Yibin Shen, City Attorney
Michael Roush, Chief Assistant City Attorney
Financial Impact section reviewed,
Elena Adair, Finance Director
cc: Eric Levitt, City Manager