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sr-021311-4d~® ~;~yof City Council Report Santa Monica° City Council Meeting: February 13, 2011 Agenda Item: ~ -D To: Mayor and City Council From: Marsha Jones Moutrie, City Attorney Subject: Legal Issues Relating to Council Members Serving as Liaisons to Boards and Commissions and Proposals to Address Those Issues, Including Eliminating Liaisons or Better Defining Their Role Recommended Action Staff recommends that Council consider modifying or eliminating the current system of Council members serving as liaisons to Boards and commissions in order to address legal issues recently identified in the California League of Cities' magazine. Executive Summary An article in the December 2010 issue of Western City magazine identified and explained ethical and legal hazards attendant upon council members participating actively in board and commission meetings as liaisons to those subordinate bodies. The hazards included the possibility of expressions of bias, interference with the subordinate body's formulation of independent recommendations or rulings, and undue influence on the part of a single council member acting independently of the whole council. Based on the concerns raised in the article and their merit, staff is recommending that the Council review the current goals and operation of Santa Monica's Council liaison program and consider either modifying the program to meet the concerns addressed in the article or eliminating the program as unnecessary given the options currently available for staying informed about the work of the City's legislative bodies. Background Members of the Santa Monica City Council have served as liaisons to boards and commissions, attending and actively participating in their meetings, for many, many years. This practice began in a time before board and commission agendas and minutes were posted on line and before meetings were televised and streamed. In 1 those days, the liaison program provided a mechanism for the Council and for the board and commissions to stay in touch with one another about their work for the City. Despite the fact that the liaison work has gone on for many, many years, the role of liaison has never been defined by law, informal Council action, or even uniform custom. The only reference to Council liaisons in local law appears in Charter Section 1007, and it is very general: "[t]he City Council may select one of its members to provide active liaison with the [Planning] Commission, but the council member chosen shall neither have a vote n the Commission nor be eligible to be its chairperson." Moreover, though the Council has previously discussed the issue, no policy on the role of liaison or any constraints on liaisons' participation in meetings has been adopted. The absence of standards may explain anecdotal information indicating that individual Council members fulfill the role quite differently from one another -some confining their participation to answering questions and supplying information about the Council's work, and others participating much more actively in discussions. It is also significant that the liaison work has become more concentrated. In past years, the liaison positions were divided up amongst Council members so that each Council member served as liaison to one or more subordinate bodies and each body had one or more liaisons. However, in recent years, some Council members have declined to serve. as liaisons because time constraints prevented them from attending additional meetings. Other Council members have been able and willing to devote more time to liaison work. Thus, the liaison positions have been filled by fewer and fewer Council members. Meanwhile, the role has remained officially undefined and has been, in effect, defined by whichever Council member or members volunteered to serve in the liaison positions. 2 Discussion Current questions about the liaison system have arisen in response to an article that appeared in the December issue of Western City, the League of California Cities' monthly magazine, which provides guidance on best practices for California cities, including best ethical practices. The article is entitled "Ethical Hazards of Attending Other Board or Commission Meetings". It was written by attorney Michael Dean who is the Sacramento-based principal and ethics chair at the Meyers Nave law firm, which specializes in municipal law. Mr. Dean is also the city attorney or assistant city attorney for three cities. A copy of the article is attached, and the article is also available at the magazine's website: www.westerncity.com. The article explains that, although Council members do not break any law by attending the meetings of subordinate bodies, they do run the risk of "potentially revealing a biased view" (thereby causing their own disqualification when the matter comes. to council or even risking a Due Process violation), "interfering with the role of the commission as an independent advisory body", and "not acting in accordance with the views of the city council as a whole." The article goes on to discuss the particular influence of council members, given that they appoint and could remove commission members. Because this influence is considerable, it may jeopardize the commission's willingness to formulate an independent position. And, one member of council exercising such influence may be antithetic to the bedrock principle that council act as a whole, not as individuals: "[c]ouncil members normally receive the same information simultaneously from city staff or from subordinate commissions or the public's testimony. This allows the council members as a body to draw conclusions in a fair and balanced way based upon the same factual foundation." Mr. Dean goes on to acknowledge that council members retain rights as citizens, including the right to attend public meetings, but he counsels that, as to expressing their 3 views, they "should wait until the commission makes it recommendation to the city council in its entirety -thus preserving the original intent of both the independent commission and the city council. Therefore, as an alternative, Mr. Dean suggests that council members could listen to meetings on line, television or clerk's recordings or could familiarize themselves with the proceeding by reading minutes. Since the article was published, staff has received inquiries from Council members and has been asked to provide recommendations. Accordingly, staff has carefully reviewed the article and concluded that Mr. Dean raises valid points. There are risks attendant upon Council members attending meetings as liaisons and participating actively in the meetings from the dais. These risks include both the legal risk of bias, which could give rise to disqualification at the Council level or even to a due process claim, and the risk of stifling the formulation of an independent recommendation from the board or commission. These risks are the most serious in the case of a board or commission acting in aquasi-judicial capacity. Staff has also considered Mr. Dean's suggestions. They assume that Council members will not serve as liaisons. However, there may be alternatives to eliminating the liaison program. For instance, the liaison or liaisons to a particular board or commission could simply meet with the chair and vice-chair of the board twice a year to discuss areas of mutual interest. And, both the commission and Council members could give a report on that meeting to their own body at its next public meeting. In order to assess whether or not to continue the liaison program, staff recommends that the Council focus on the program's goals. If no clear benefit can be identified, then, in view of the risks detailed in the Dean article, staff recommends eliminating or partially eliminating it. For instance, Council could consider appointing liaisons only to the quasi- judicial boards and commissions or to some other subgroup. Of course, even if liaison 4 positions were partly or completely eliminated, boards and commissions would still have formal and informal avenues of communication with Council. Formal avenues would include directing requests to Council, speaking at Council meetings, and asking Council members to agendize items for Council consideration. Informal avenues would include individual communications between members of the legislative bodies. On the other hand, if benefits of the liaison program to the whole Council, the boards and commissions and the City are identified, then staff recommends revising the program to address the concerns identified in the Dean article. This could be done by adopting a resolution or policy statement defining the role of liaison and establishing standards for liaisons' conduct. Also, in order to address the concern of undue individual influence; Council should consider taking steps to ensure that the liaison responsibilities are shared by the full Council. The responsibilities could be divided up according to Council members' preferences, through a rotation system or by lot; and time limits on service in particular liaison positions should probably be considered to ensure that responsibilities and opportunities are shared and that the appearance of undue influence is avoided. Alternatives Council could leave the liaison program in place but change the method by which the work is done. Thus, for instance, instead of attending and participating in public meetings of subordinate bodies, the liaison or liaisons could simply meet twice a year with the chair and co-chair of the subordinate body. Thereafter, a public report on the meeting could be made to each body. This system would be much simpler and could allow even Council members who are very busy with their regular work to participate in the liaison program. Financial Impacts & Budget Actions There are no financial impacts attendant upon eliminating, modifying or continuing the liaison program. 5 Prepared by: Marsha Jones Moutrie, City Attorney Approved: Forwarded to CounciL• Ma sha J es Moutri Rod Gould CityvAtt n y City Manager Attachments: A. "The Ethical Hazards of City Council Members Attending Other Board Meetings", Western City, 12/10 B. List of Board and Commission Meeting Times and Locations 6 Western City ~ The Ethical Hazards of City Council Members Attending Other Board Me... Page 1 of 3 Send to printer Close window The Ethical Hazards of City Council Members Attending ®ther Board Meetings BY MICHAEL DEAN Michael Dean is a Sacramento-based principal and the ethics chair at the legal firm of Meyers Nave. Dean serves as city attorney for the City of Dixon and assistant city attorney for the cities of Colusa and Plymouth. He can be reached at mdean@meyersnave.com. This column is provided as ethics advice and is not intended as legal advice. Imagine this scenario: The planning commission is considering whether to recommend a zoning change to the city council, which would allow more residential use in the downtown area and promote the mixed-use vision in its General Plan. Wouldn't any city council member want to know as much information as possible? Attending the planning commission meeting and listening to the perspectives of the city planner, engineer, architect, commission members and others might seem like a smart move. The council member may even be able to ask questions of the participants or give his or her views, thus learning about the issues and influencing the matter before it comes before the city council. In fact, city council members can often be found in the audience of planning commission meetings, listening to the proceedings and occasionally participating. However, this may not be such a good idea. As innocent as a council member's motives may be, when he or she personally attends a planning commission meeting or another subordinate committee meetirig, he or she may be crossing an ethical boundary. Council members do not violate any laws by attending commission meetings. However, they run the risk of: Potentially revealing a biased view, thereby causing their own disqualification should the matter at http://www.westerncity.corn/core/pagetools.php?pageid=11868&url=%2FWwtern-City%2F... 2/7/2011 Western City ~ The Ethical Hazards of City Council Members Attending Other Board Me... Page 2 of 3 hand subsequently come before the council; • Intertering with the role of the commission as an independent advisory body; and • NoYacting in accordance with the views of the city council as a whole. Most city council members know to steer clear of the somewhat hazy legal boundaries that might cause them to be disqualified from the decision-making process due to bias. Many it not most planning commission or other commission decisions are merely advisory to or at least appealable to the city council. Because the right to due process is attached to many of these types of commission decisions, the participants in such proceedings have the right to an unbiased decision-maker at the city council level. A council member who comments at the commission meeting and indicates a firm position on a particular matter may be subjected to a challenge for bias when the same issue reaches the city council Related Ethical Challenges Beyond the issue of perceived bias, participating in a commission meeting raises other ethical questions. For instance, council members generally have the authority to remove a commission member. With this power, a council membePs mere attendance at a meeting can be highly influential, especially when he or she makes his or her opinions known. Merely indicating that one is not speaking for the entire council, but rather providing one's own opinion, does not address the significant impact of the "boss" offering an opinion. This influence may also jeopardize a significant role of the commission, which is to provide independent recommendations or decisions to the city council. After all, none of the cities' commissions are required to exist; if the city council wants to have the role of decision-maker, it could take that role. But when a city establishes a commission, the city council has also by implication indicated its desire to have an independent body make decisions or recommendations. The presence of the appointing authority at the commission meetings affects that independence. Likewise, in acouncil-manager form of government, the intent and expectation is that a city council will act as a whole, not as individuals. Council members normally receive the same information simultaneously from city staff or from their subordinate commissions or the public's testimony. This allows the council members as a body to draw conclusions in a fair and balanced way based upon the same factual foundation. City council members may undermine this expectation when they individually attend meetings of a subordinate commission. To some extent the council member who attends collects information that will not reach other council members in quite the same way. Those council members who attend may also subtly influence either the outcome of the commission's deliberations or how the matter will eventually be presented before the council - in ways not available to the council members who did not attend the commission meeting: Of course, council members do not completely give up their rights as private citizens, and they are both free to and expected to gather information relevant to the performance of their duties. They are entitled to attend a commission's public meeting. However, to remain firmly upright on the ethical tightrope, council members should wait until the commission makes its recommendation to the city council in its entirety -thus preserving the original intent of both the independent commission and the city council. http://www.westerncity.com/core/pagetools.php?pageid=11868&ur1=%2F Western-City%2F... 2/7/2011 Western City ~ The Ethical Hazards of City Council Members Attending Other Board Me... Page 3 of 3 Alternatives to Attending in Person This does not deprive council members of the ability to learn what occurs at a commission meeting. A city council member may listen to most meetings online, on television or by using the city clerk's taped recordings. Information can also be obtained by reading the commission's meeting minutes. A council member's personal presence at or participation in a commission meeting, on the other hand, could reveal a biased view, disrupt the independence of the commission or exert undue influence on the commission, regardless of the council member's intent. It is best avoided. For More Information Leam more about bias in the October 2006 "Everyday Ethics" column, "When an Elected Official Feels Passionately About an Issue: Fair Process Requirements in Adjudicative Decision-Making." http://www.westerncity.com/core/pagetools.php?pageid=11868&url=%2FWwtern-City%2F... 2/7/2011 ATTACHMENT B City of Santa Monica Boards 8~ Commissions General Meeting Schedule City Council Accessibility Appeals Board Airport Commission Architectural Review Board Arts Commission 2"d & 4th Tue., Council Chamber At request of chair or filing of appeal by applicant, Bldg & Safety Office 4th Mon., 7:30 p.m., City Council Chamber 1St & 3`d Mon., 7:00 p.m., Council Chamber 3`d Mon., 6:30 p.m., Ken Edwards Center Building & Safety Commission Commission for the Senior Community Commission on the Status of Women Disabilities Commission Housing Commission Landmarks Commission Santa Monica Library Board Measure V Citizens Oversight Committee Personnel Board Planning Commission Recreation & Parks Commission Social Service Commission Bayside District Corporation Convention & Visitors Bureau Los Angeles County West Vector Control District Metropolitan Water District Pier Restoration Corporation Rent Control Board Santa Monica College District Board Santa Monica-Malibu Unified School District Board At request of 2 members or chair or filing of appeal by applicant, Bldg & Safety Office 4th Wed., 1:30 p.m., Ken Edwards Center 2"d Wed., 7:00 p.m., Ken Edwards Center 1St Mon., 6:30 p.m.,-Ken Edwards Center 3`tl Thu., 4:30 p.m., Ken Edwards Center 2"d Mon., 7:00 p.m., City Council Chamber 1St Thu., 7:00 p.m., Main Library Quarterly on the 2"d Wed., 7:00 p.m., Ken Edwards Center 4th Thu., 4:30 p.m.; Public Safety Facility 1St & 3`d Wed., 7:00 p.m., Council Chamber 3`d Thu., 7:30 p.m., Council Chamber 4th Mon., 7:00 p.m., Ken Edwards Center 4th Thu., 6:00 p.m., Bayside Office 2"d Wed., 5:00 p.m., various locations 2nd Thu., 7:30 p.m., District Office 2"d Tue., 12:00 p.m., Office Headquarters 1St Wed., 7:00 p.m., Ken Edwards Center Two to three Thursdays per month, 7:00 p.m., Council Chamber 1St Mon., 7:00 p.m., College Board Room 1St and 3`d Thu., 5:30 p.m., various locations Updated: 1/31/2011