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CIty COllncIl MeetIng 3-26-85 Santa MonIca, CalIfornIa
STAFF REPORT !o-F
MAR 2 6 I9BS
TO: Mayor and CIty CouncIl
FROM: CIty Attorney
SUBJECT: Ordinance AmendIng SectIons 2604, 2605, 2606,
2607, and 2608 of the MunIcipal Code and Adding
SectIon 2608a to the MunIcIpal Code RelatIng
to Subpoenas
At Its meetlng on March 12, 1985, the CIty Council
Introduced for fIrst readIng an ordinance amending SectIons
2604, 2605, 2606, 2607, and 2608 of the MunIcIpal Code and
addIng Section 2608a to the MunIcipal Code relatlg to
subpoenas. The ordinance IS now presented to the CIty CounCIl
for adoption.
RECOMMENDATION
It IS respectfully recommended that the accompanYIng
ordInance be adopted.
PREPARED BY: Robert M. Myers, CIty Attorney 'll
Stephen S. Stark, AssIstant CIty Attorney
~-F
MAR 2 6 1985
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CA:RMM:rmsubpoe
Clty Councll Meeting 3-26-85 Santa Monlca, Callfornla
ORDINANCE NUMBER ____
(Clty Co~ncll Serles)
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA AMENDING SECTIONS
2604, 2605, 2606, 2607 AND 2608 OF THE
SANTA MONICA MUNICIPAL CODE AND ADDING
SECTION 2608A TO THE SANTA MONICA
MUNICIPAL CODE RELATING TO SUBPOENAS
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION 1. Sectlon 2604 of the Santa Mon1ca Mun1c1pal
Code 1S amended to read as follows:
SECTION 2604. FQrm of Subooena
The form of Subpoena to be 1ssued by
the City Counc1l under Section 614 of
the City Charter shall be
substantially as follows:
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) S5 IN THE MATTER OF
CITY OF SANTA MONICA )
SUBPOENA
THE CITY OF SANTA MONICA SENDS GREETINGS TO:
You are hereby commanded to appear before the Clty
Councll of the Clty of Santa Monica, In the Councll Chamber in
the Cl ty Hall of sald CIty, on the _ day of ,
1
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. , . .
198 -, at the hour of o'clock _M., to testIfy In a
matter now pendIng before said CIty Council concernIng
and to bring wIth you and to produce before saId CIty Council
the following:
to be used as eVIdence.
DIsobedIence of thIS subpoena or the refusal to testIfy
(except upon other than constItutIonal grounds) shall
constItute a mIsdemeanor and shall be punishable by the
penaltIes provIded for In SectIon 1200 of the MunIcIpal Code
of the City of Santa Monica.
In WItness Whereof, I have hereunto set my hand and
affIxed the seal of saId CIty of Santa MonIca this day
of , 19 - .
City Clerk.
SECTION 2. Section 2605 of the Santa Monica MunicIpal
Code IS amended to read as follows:
SectIon 2605. Use of Subooena
by HearIng ExamIner, Boards and
Commissions. The Hearing Examiner,
Architectut"al RevIew Board, Personnel
Board, PlannIng CommISSIon, ot" upon
specIfic authorIzatIon by the CIty
CouncIl, any other board or commISSIon
enumerated In ArtIcle X of the City
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. . .
Charter or created by ordInance of the
CIty CouncIl are empowered to compel
the attendance of witnesses, to
examIne them under oath, and to compel
them to produce all eVIdence before
It. Subpoenas may be Issued in the
name of the CIty pursuant to the order
of the Hearing ExamIner or any such
board or commISSIon and be attested by
the CIty Clerk. Such subpoenas shall
be in substantIally the same form as
hereIn provIded for subpoenas to be
Issued by the order of the CIty
CouncIl. DisobedIence of any subpoena
issued in the manner herein provIded
or the refusal to testify (except upon
constitutIonal grounds) shall
constItute a mIsdemeanor and shall be
punIshable by the penaltIes provIded
for In SectIon 1200 hereof.
SECTION 3. SectIon 2606 of the Santa MonIca MunICIpal
Code IS amended to read as follows:
SECTION 2606. Service.
Subpoenas Issued by the order of the
CIty CouncIl or by any board or
commISSIon under SectIon 2605 shall be
served by a polIce offIcer or other
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person by dellver1ng a true copy
thereof to the witness and by
exhib1ting the or1glnal subpoena to
such Witness, and such pollce offlcer
or other person making such serVIce
shall make due return thereof in
writing, shOWing such service and the
time J date and place thereof.
SECTION 4. Sectlon 2607 of the Santa Monica Municipal
Code 1S amended to read as follows:
SECTION 2607. Wltness Fees and
Mileaqe. A witness appearing pursuant
to a subpoena of the City Counc1l or
pursuant to Section 2605 shall be
entitled to receive the sum of four
dollars and fifty cents ($4.50) for
each hour that he or she IS actually
In attendance, not to exceed the sum
of thirty-five dollars ($35.00) per
day, and 1n add1tlon thereto, for
m1leage actually travelled, both ways,
twenty cents ($0.20) a mile. Such
witness shall not be entitled to
demand payment of fees and mileage In
advance. Such fees and mileage shall
constitute a demand against the City
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to be pa1d 1n llke manner as other
demands.
SECTION 5 . SectIon 2608 of the Santa Mon1ca Munic1pal
Code 1S amended to read as follows:
SECTION 2608. Complaint for
D1sobed1ence. Should any person fall
to obey any such subpoena, or refuse
to test1fy (except upon constltut1onal
grounds) the C1ty Councll, board or
coma'll ss lon, pursuant to whose order
such subpoena is 1ssued, shall
thereupon adopt a resolutIon embodying
the facts of such dlsobedlence or
refusal to testIfy and dlrectlng the
preslding offIcer of such body to make
complalnt In the Mun1clpal Court of
the City of Santa MonIca agaInst such
person.
SECTION 6 . Sect10n 2608a 1S added to the Santa Monica
Munlc1pal Code to read as follows:
SECTION 2608A. Enforcement of
Rent Control Board Subpoenas.
Dlsobedlence of any subpoena Issued by
or on behalf of the Rent Control Board
pursuant to the provIsions of Article
XVIII of the CIty Charter or the
refusal to testIfy before the Rent
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Control Board or one of Its hearIng
offIcers (except upon constItutIonal
grounds) shall constitute a
misdemeanor and shall be punIshable by
the penaltIes provIded for In SectIon
1200 hereof. Should any person fall
to obey such subpoena or refuse to
testify (except upon constitutional
grounds), the Rent Control Board shall
thereupon adopt a resolution embodying
the facts of such dIsobedIence or
refusal to testIfy and directIng the
Chairperson of the Rent Control Board
to make complaint In the MunICIpal
Court for the Santa MonIca JudiCIal
District against such person.
SECTION 7 . Any provIsion of the Santa Monica MunicIpal
Code or appendices thereto InconSistent WIth the prOVISIons of
this ordInance, to the extent of such InconSistencIes and no
further, are hereby repealed or modlfed to that extent
necessary to affect the prOVISIons of thiS ordinance.
SECTION 8. If any sectIon, subsectIon, sentence,
clause, or phrase of thiS ordInance IS for any reason held to
be invalId or unconstitutIonal by a deCision of any court of
competent Jurisdiction, such deCISIon shall not affect the
valIdIty of the remainIng portions of the ordInance. The CIty
CounCIl hereby declares that It would have passed this
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ordinance and each and every section, subsectIon, sentence,
clause or phrase not declared invalId or unconstItutional
wIthout regard to whether any portIon of the ordinance would
be subsequently declared invalid or unconstItutIonal.
SECTION 9 . The Mayor shall SIgn and the CIty Clerk
shall attest to the passage of thIS ordInance. The CIty Clerk
shall cause the same to be published once In the offICIal
newspaper wIthIn 15 days after Its adoptIon. The ordInance
shall become effectIve after 30 days from its adoption.
APPROVED AS TO FORM:
~\-.'<r-
ROBERT M. MYERS
City Attorney
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RE: RENT BOARD SUBPOENA POWER
(l) Why was the problem with parties ignoring Subpoenas
not addressed when the Charter was amended in Fall 1984?
(2) Has there been any study done of how many subpoenas
the Rent Board has issued since its inception, or on an annual
basis, how many subpoenas are ignored?
( 3) Has the Rent Board supplied any profile of the
typical types of subpoenas issued, and the reason for issuing
them?
(4) Section 1802 of the Charter states that the Rent
Board ~shall exerCl.se its powers and duties under this Article
independent of without interference from the Clty Council, City
Manager and City Attorney." Is not the cooperation of the City
Council and City Attorney regarding Supoenas a vlolation of the
independence of the Rent Board mandated in the Charter?
( 5 ) Crlminal sanctions already exist l.n the Rent
Control Charter Amendment, Sectlon 1810 WhICh provldes that lTany
landlord violating this Artlcle shall be gUIlty of a misdemeanor."
Why is there a need for the City council to create an addItIonal
misdemeanor sanction?
( 6) The Board already has power to seek relief from
court regard1ng a Subpoena. Section 1811 provldes that "the Board
may seek relief from the appropr1ate court; to enforce any
provision of this Article or its implementing regulations "
. . . .
(7) The Rent Board is approaching the City Council
requesting an ordinance. There are no standards set forth under
which the Rent Board will exercise the power it is requesting of
the City Council. The circumstances under which Subpoenas may be
issued are not enumerated. It would seem that the City Council
should request standards if it plans to give this power to the
Rent Board.
( 8) The civil liabl.lity of the City for abuse of the
subpoena power by the Rent Control Board is not addressed.
( 9 ) The necessity for any city agency to have subpoena
power other than the City Council 15 not adequately addressed.
. . . Mol ~6-P
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MR 2 6 \9&5
MEMORANDUM
DATE: March 26, 1985
TO: Mayor and CIty CouncIl
FROM: Robert H. Myers, CIty Attorney
SUBJECT: Agenda Item 6F (Rent Control Board
Subpoenas)
In connectIon WIth Agenda Item 6F, the accompanYIng
memorandum from the Rent Control Board's General Counsel
explaIns the procedures of the Rent Control Board concernIng
the Issuance of subpoenas. It IS provIded for your
_InformatIon in connectIon WIth any dIScussIon concernIng
Agenda 6F thIS evenIng.
RM:rm6f
Add -{:eJh,c
MAR 2 fi 1985
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SANTA MONICA RENT CONTROL BOARD - MEMO
TO: CO~MISSIONER FINKEL ~
~
'-:J '. J
FROM: RE!~T CONTROL BOARD GE~ERAL COUNSE' :-"\
DATE: MARCH 26, 1985 ~-j
RE: BOARD EXERCISE OF SUBPOENA POWER
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INTRODGCTION
You nave inquired about the practices of the Board's
administrative and legal staffs In connection with the issuance
of subpoenas in administrative cases before the Board or its
hearing examlners. In Vlew of tile City Council's Immlnent
consideration of MunIcipal Code amendments which would make
disooedlence to a Board subpoena a misdemeanor, it is an
appropriate tIme for a summary of our practices.
Briefly, the issuance of subpoenas is a ministerial
act, requirIng only that the request for issuance be made by a
party to a pending proceeding. But, the Board and Its hearing
examiners nave tne ability to protect Witnesses against any
party's abuse of the subpoena power through tneir innerent
autnorlty to make remedlal orders necessary to orderly and fair
conduct of hearings.
DISCUSSION
MinIsterial Issuanc~_~~ubpo~~~~
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Board subpoenas are deSigned to be issued only upon
approval by an offiCIal of the Board administration. They are
Issued only when they bear the Signature of the admInIstrator,
tile general counsel, or the supervIsor of the hearIngs
department. The only criterIon applicable to such issuance IS,
however, tnat the person requesting the subpoena be a party to
a proceeding pending before tne Board or its hearing examiner.
The sUDpoenas are signed by tile offIclal in eac~ case, and no
subpoena forms are pre.signed.
No further determinatIon 15 made at the time of
Issuance as to the propriety of the subpoena. Thls is true
0960L
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Memo: Board ExerC1se of Subpoena Power
March 26, 1985
Page 2
because the Board's duty to issue subpoenas upon application by
a party 1S mandatory, and the act of issuance is minister1al
rather tnan dIscretionary. (See dIScussion below, hO'..fever,
concerning the Board's exercise of its power to make remedIal
orders In hearings.)
Government agencIes which issue subpoenas need not
requIre a sholVIng of any kind as a prerequIsite to issuance
unless the statute conferring the subpoena power on the agency
makes Issuance dIscretionary rather than ministerial. So, for
example, some state agencIes actually mail blank, sIgned
subpoenas to requestIng partIes or the1r attorneys. By
contrast, the pract1ce of the Board's staff 1S somewhat more
restrictIve than even that of the courts, in which subpoenas
are ordinarIly issued in blank as a matter of course by
clerks. Most state agencies also issue subpoenas before
tlearings as a mInisterial act because the AdministratIve
Procedure Act so provides. It does, however, require the
exercise of dlscretlon as to 1.ssuance after commencement of the
nearing. Article XVIII of the Charter contains no such
requirement.
Article XVIII of tne Charter 15 silent as to the
process to be used in issuance of subpoenas, saying only that
tne Board has the "power and duty" to subpoena WItnesses.
Charter Section 1803(f)(11). There is nothing In the Charter
to indicate that tbe Board has any discretion with respect to
issuance of subpoenas, and the Board has interpreted the
CJla r t e r to the effect that such Issuance IS a ministerial act.
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Board Power to Protect WItnesseS
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NotwithstandIng the Issuance of subpoenas as a routine
matter. tne Board itself and its hearIng examIners. within
the i r iilJlerent powers to make all orders necessary to the fair
and efflcIent conduct of hearings. may make any remedIal orders
Willen may be necessary with respect to subpoenas WhICh have
been lssued. For example, wnere the service of the subpoena
has gIven the w-itness insufficient notice of the reqUIred
appearance. a continuance may be granted. Furthermore, the
scope of a sUDpoena duces tecum may be lImIted where items not
relevant to the proceedIng have been included. It may also be
pOSsible for the Board or a hearing examUler to quash a
SUbpoena (l.e. . refuse to enforce) in appropr1.ate cases. though
it IS legally unclear wnether thiS power belongs exclUSIvely to
tile courts. By exerCising such powers the witness can be
protected against any abUSive use of subpoenas by parties to
Board proceedings.
0960L
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Memo: Board Exercise of Subpoena Power
March 26, 1985
Page 3
In addItion to the remedIes obtainable through orders
of the Board or a hearIng examlner, persons subject to Board
sUDpoenas nave a JudiCIal remedy. If a subpoena has been
improperly Issued, or a subpoena duces tecum is too broad In
its reach, a court may order the subpoena quashed. Tne power
of the courts to quash admInistrative agency subpoenas has been
establIsaed by judIcial deCISIon.
It is my opInion that the standards and practices
applIed to the issuance of subpoenas by the Board are in accord
with tne requIrements of law and meet the needs of a faIr and
orderly hearing process.
cc: Howell Tumlin
Robert Myers
0960L
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