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SR-6-F (6) . 9 . ! "'J) _ ,,~__/ . ) - j"- CA:RMM:SSS:ms:sssubsra 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 -- - - - --- - ---- -- T . . . 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 --- ----"'----- . , . . 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 2 ----- ----- --- ----- . . . 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 3 --~ . . . 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 4 -------------------~--- -------- ----- . . . . 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 5 --- - - ---- . . . 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 6 ------------------------------------------ ------------- - ----------- ----- . . . 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 7 --~----- ------- - -------~-------- . :; . {,'- ~F' ~ j: Jt-L " ~/- i (ra.--:~A.e.d., << ~J-/'!---n-7 -:<:,a~ ~. -3 -.26-r:f7 ~~ ' ~ ~ ttJ.. ,v....e~ ~ "'~' '~1 :)-- 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 - 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 . . . . 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 ------------------------------------------------------_.--------- 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~~~~ ------------ 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 . ~ . . . 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. 0 Board Power to Protect WItnesseS --- --- -------- ---------- --------- ---- 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 . . .. . . . . 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 ~