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SR 09-24-2019 7F City Council Report City Council Meeting: September 24, 2019 Agenda Item: 7.F 1 of 3 To: Mayor and City Council From: Lane Dilg, City Attorney, City Attorney's Office, Administration Subject: Introduction and First Reading of an Ordinance Adding Section 4.08.820 of the Santa Monica Municipal Code to Prohibit the Making of False Statement s to the City Recommended Action Staff recommends that the City Council introduce for first reading the attached ordinance adding Section 4.08.820 of the Santa Monica Municipal Code to prohibit the making of false statements to the City. Executive Summary The City relies upon the information it receives in applications, reports, and other documents to make informed decisions. The Municipal Code, however, does not expressly prohibit making false statements to the City. Staff recommends that the City Council pass such an ordinance to protect the reliability of information submitted to the City that can influence the City’s decision-making process. Background The Municipal Code currently provides consequences for false statements in applications for certain permits and other filings. For example, under Santa Monica Municipal Code § 6.36.080, a vendor permit may be revoked by the City Manager if “[t]he applicant has made a materially false, misleading or fraudulent statement of fact or omission of fact to the City.” In addition, under Santa Monica Municipal Code § 3.24.030, certain forms must be submitted under penalty of perjury. However, the Municipal Code does not have a broader, general prohibition against false statements in applications or other materials submitted to the City. Discussion The proposed ordinance reflects consideration of the following five issues: 2 of 3 Falsity. The proposed ordinance applies to false, misleading, or fraudulent statements or representations. This means that the ordinance will cover direct lies as well as misleading half-truths, concealments, and tricks. Knowledge. The proposed ordinance has a knowledge requirement. As a result, the ordinance will not apply when someone makes an honest mistake in a submission to the City. For a person to knowingly make a false statement, the person must act with actual knowledge of falsity, deliberate ignorance of truth or falsity, or reckless disregard of truth or falsity. The ordinance should not require a specific intent to defraud because that is not necessary for a defendant’s knowing false statement to have misled the City. Materiality. The proposed ordinance includes a materiality requirement. To be material, a statement is required to have a natural tendency to influence, or be capable of influencing, a public official or decisionmaker of the City. This will preclude application of the ordinance to trivial statements, or statements that are otherwise incapable of influencing the City’s actions. Applicability. The ordinance applies to false statements made in any matter within the jurisdiction of the City. This accords with the federal statute regarding false statements, 18 U.S.C. 1001, and addresses the purpose of the ordinance, to prevent false statements to the City, by whoever made and in whatever context, that pose a risk of causing City decisions to be based on false information. Penalty. The penalty for violating the ordinance should be sufficient to have a deterrent effect and also proportional to the offense. Staff recommends that a violation of the proposed ordinance be a misdemeanor, in keeping with other provisions in the Municipal Code. A misdemeanor is punishable by a fine up to $1,000, jail for up to six months, or both. Financial Impacts and Budget Actions There is no immediate financial impact or budget action necessary as a result of the recommended action. 3 of 3 Prepared By: Lane Dilg, City Attorney Approved Forwarded to Council Attachments: A. CAO - Ordinance - False Statements - 09.24.2019 1 City Council Meeting: September 24, 2019 Santa Monica, California ORDINANCE NUMBER________ (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA ADDING SECTION 4.08.820 OF THE SANTA MONICA MUNICIPAL CODE TO PROHIBIT THE MAKING OF FALSE STATEMENTS TO THE CITY WHEREAS, the City of Santa Monica is a municipal corporation existing under its charter and the laws of the State of California and is empowe red by the California Constitution to control its own municipal affairs; and WHEREAS, Article XI of the California Constitution recognizes the City’s authority to enforce laws of general application via its police power; and WHEREAS, persons regularly submit information to the City that has the capacity to influence a decision made by a decision-making body of the City; and WHEREAS, false and misleading statements submitted to the City impair the functions of municipal government and undermine the integrity and reliability of information available to the City; and WHEREAS, Santa Monica Municipal Code Section 3.25.030 prohibits false statements made in the ammunition sales log maintained by a holder of a business license to sell ammunition; and WHEREAS, Santa Monica Municipal Code Section 5.20.420 prohibits false statements made in documents filed with the Director of the Public Works Department 2 regarding industrial wastewater control under Section 5.20.420; and WHEREAS, Santa Monica Municipal Code Section 6.04.220 prohibits false statements made in annual statements of licensee filed with the Director of Finance; and WHEREAS, under Santa Monica Municipal Code Section 1.09.060, a recipient of an administrative citation may request a hearing to contest the administrative citation; and WHEREAS, under Santa Monica Municipal Code Section 1.10.090, a Hearing Examiner for a hearing requested under Santa Monica Municipal Code Section 1.09.060 shall issue written findings and, if appropriate, issue an administrative order; and WHEREAS, the United States Supreme Court has stated in United States v. Gillilandi (1941) that a federal law prohibiting false statements to the government is designed to “protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described ”; and WHEREAS, the California Court of Appeal in Hudson v. Superior Court (2017) recognized that California Penal Code Section 115, which prohibits offering false instruments to any public office in California, has the purpose to “protect the integrity and reliability of public records.” 3 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Santa Monica Municipal Code Section 4.08.820 is hereby added to read as follows: 4.08.820 False Statements Any person who knowingly makes a false, misleading, or fraudulent material statement or representation in any matter within the jurisdiction of the City shall be guilty of a misdemeanor, which shall be punishable by a fine not exceeding one thousand dollars per violation, or by imprisonment in the County Jail for a period not exceeding six months, or by both such fine and imprisonment. SECTION 2. Any provision of the Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 3. 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 this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any porti on of the ordinance would be subsequently declared invalid or unconstitutional. SECTION 4. 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 4 newspaper within 15 days after its adoption. This Ordinance shall become effective 30 days from its adoption. APPROVED AS TO FORM: _______________________ LANE DILG City Attorney