SR-6-K (4)
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Clt:y Counc1l MeetIng 1-8-85 Santa Monlcat CalIfornIa
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STAFF REPORT (;,-1(
TO Mayor and CIty CouncIl JAN 8 ISB5
FROM' CIty Attorney
SUBJECT' RecommendatIon to DIrect C1ty Attorney to
Prepare OrdInance AmendIng MunIcIpal Code
SectIon 2605 RegardIng Rent Control Board
Subpoenas
The Rent Control Board ("Board") has had a contInuIng
problem wIth partIes IgnorIng theIr subpoenas and the Board
beIng powerless to compel complIance The Board has
requested that the CIty CouncIl amend MunICIpal Code SectIon
2605 to provIde the Board WIth comparable subpoena power to
other CIty boards and commISSIons.
SectIon 1803(fHl1) of the CIty Charter sets forth the
authorIty of the Board to admInIster oaths and to subpoena
WItnesses. The CIty Charter 1S SIlent on the authorIty of
the Board to compel complIance WIth a subpoena that IS
dIsregarded In effectt thIS renders the subpoena power of
the Board as Illusory as eVIdenced by the frequency WIth
WhICh Board subpoenas are Ignored.
AdmInIstrat1ve agencIes have no Inherent power to
reqUIre attendance of WItnesses See 18 Ops Cal. Atty, Gen.
236 (1951). In thIS case. the CIty Charter authorIzes the
Issuance of the subpoena WIthout the concommltant authorIty
to seek JudICIal enforcement of the subpoena A non-JudIcIal
agency or offIcer (such as the Board) does not have and may
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JA~ 8 1985
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not be gIven power to punIsh for contempt of a subpoena
People v. Schwartz, 78 Cal. App 561 , 570, 248 P. 990} 993
(19261; Marcus v. Workmen's Compensatlon Appeals Board, 35
Cal. App 3d 598, 604, 111 Cal. Rptr. 101, 104 (1973)
TypIcally, admInIstratIve agenCIes are authorIzed by statute
to apply to the court to obtaIn an order compellIng the
wItness to comply wlth the admInIstrative subpoena. HIll v.
BrIsban~, 66 Cal. App. 2d 15, 20, 151 P.2d 578, 581 (1944)
In some cases. such as MunICIpal Code SectIon 2605 and
Government Code SectIon 11525 , the agency may apply to the
court for ImmedIate sanctIons or penaltIes fot" faIlure to
comply WIth the orIgInal subpoena.
MunICIpal Code SectIon 2605 authorIzes CIty boards and
commISSIons to compel productIon of wItnesses and eVIdence by
the Issuance of subpoenas In the name of the CIty. MunICIpal
Code SectIon 2605 also authorIzes the CIty to prosecute
non-complIance WI th a subpoena as a mlsdemeanor MunICIpal
Code SectIon 2605 IS lImIted to CIty boards and commISSIons
WhIch are enumerated In ArtIcle X of the CIty Charter
(PlannIng CommISSIon, LIbrary Board, Personnel Board,
RecreatIon CommIssIon, AIrport CommIssIon} It IS proposed
that MunICIpal Code SectIon 2605 be amended to Include boards
and commISSIons enumerated in Artlcle.By so IncorporatIng the
Board, It would be requIred to follow standard CIty
procedures for the Issuance and enforcement of subpoenas.
The subpoenas would only be lssued In the name of the CIty
and under the seal of the CIty Clerk A faIlure to comply
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wIth a subpoena would be referred to the CIty Attorney's
OffIce for reVIew of whether there IS probable cause to
charge a VIolatIon of MunICIpal Code SectIon 2605.
In reVIeWIng MunICIpal Code SectIon 2605, a sIgnIfIcant
clerIcal error has been noted. As presently worded, thIS
sectIon provIdes that the refusal to testIfy pursuant to a
subpoena IS a mIsdemeanor "except upon other than
constItutIonal grounds". The law should prOVIde that an
IndIVIdual IS not gUIlty of a mIsdemeanor for refUSIng to
testIfy on constItutIonal grounds (e. g. , prIvIIIge agaInst
self-IncrImInatIon).
It IS recommended that MunICIpal Code SectIon 2605 be
amended as follows:
SECTION 2605. Use of Subooena by
Boards and CommISSIons. Each of the boards
and commISSIons enumerated In ArtIcle X of
the CIty Charter, Or created by ordInances
of the CIty CounCIl pursuant to the
prOVISIons of the CIty Charter, and the
Rent Control Board created by ArtIcle XVIII
of the CIty Charter 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 ISSlIed In the name of the CIty
pursuant to the order of any such board or
commmISSIon and be attested by the CIty
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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 sha 11 be
punIshable by the penaltIes prOVIded for In
SectIon 1200.
RECOMMENDATION
It IS respectfully recommended that the CIty CounCIl
dIrect the CIty Attorney to prepare an ordInance amendIng
MunICIpal Code SectIon 2605.
PREPARED BY: Robert M Myers, CIty Attorney
Jonathan S. Horne, Deputy CIty Attorney
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