SR 09-24-2019 7G
City Council
Report
City Council Meeting: September 24, 2019
Agenda Item: 7.G
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 2.32.040 of
the Santa Monica Municipal Code to Enhance the Investigative Authority of
the City Attorney
Recommended Action
Staff recommends that the City Council introduce for first reading the attached
ordinance adding Section 2.32.040 to the Santa Monica Municipal Code to enhance the
investigative authority of the City Attorney.
Executive Summary
The City Attorney is responsible for the investigation and prosecution of criminal
misdemeanors committed in violation of California statutes and the Municipal Code, as
well as civil enforcement actions pursued under California statutes and the Municipal
Code. To properly investigate these matters, the City Attorney must be able to obtain
documents and testimony from persons with relevant information. Staff therefore
proposes an ordinance to grant subpoena power and related investigative authority to
the City Attorney.
Background
The Municipal Code currently provides subpoena power to the City Council, the City
with respect to specific provisions, and certain boards and commissions. The Municipal
Code does not, however, provide subpoena power to the City Attorney. The City
Council may pass an ordinance to grant subpoena power and related investigative
powers to the City Attorney. Ordinances in San Francisco and San Jose, and many
state ordinances, serve as models. Recently, the California Appellate Court upheld the
exercise of such powers in City & County of San Francisco v. Uber Techs., Inc., 36 Cal.
App. 5th 66 (2019).
2 of 3
Discussion
The proposed ordinance would grant the City Attorney five investigative powers. Taken
together, these powers will help the City Attorney conduct effective investigations and
conserve limited investigative resources. Each power is discussed below:
1. Power to inspect: Because the Government Code and the Municipal Code
require persons to maintain various documents and other items that may be
relevant to an investigation being conducted by the City Attorney, it is important
that the City Attorney be able to inspect these documents and items as part of
any such investigation.
2. Power to issue subpoenas: The power to issue subpoenas for testimony of
witnesses and production of documents, physical materials, and other items is
critical for gathering relevant evidence for an investigation.
3. Power to issue written interrogatories: The power to issue written interrogatories
provides a practical and efficient way to obtain information, particularly when the
respondent requires extended time to provide a full and accurate answer, or
when the respondent can adequately summarize voluminous documentation .
4. Power to obtain sworn testimony and take evidence. The power to administer
oaths and affirmations and take evidence are generally associated with hearings
or examinations, but the inclusion of these powers will cover any case in which
the City Attorney needs to rely on them in an administrative inquiry or dispute
resolution process, or in case an action by the City Attorney is challenged as
lacking such authority.
5. Power to petition a court for an order to compel: A court order is required to
enforce the exercise of the powers listed above.
3 of 3
Financial Impacts and Budget Actions
There is no immediate financial impact or budget action necessary as a result of the
recommended action.
Prepared By: Lane Dilg, City Attorney
Approved
Forwarded to Council
Attachments:
A. CAO - Ordinance - Investigative Authority - 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 2.32.040 OF THE SANTA MONICA MUNICIPAL CODE TO
ENHANCE THE INVESTIGATIVE AUTHORITY OF THE CITY ATTORNEY
WHEREAS, the City of Santa Monica is a municipal corporation existing under its
charter and the laws of the State of California and is empowered 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, Section 708 of the City Charter states that the City Attorney shall
represent and appear for the City in any or all actions and proceedings in which the City
is concerned or is a party; and
WHEREAS, Section 708 of the City Charter further states that the City Attorney
shall prosecute on behalf of the people all criminal cases for violation of the Charter and
of City ordinances, and all misdemeanor offenses arising upon violation of the laws of the
State; and
WHEREAS, California Penal Code Section 373a states that it is the duty of “the
city attorney or city prosecutor of any city the charter of which imposes the duty upon the
city attorney or city prosecutor to prosecute state misdemeanors, to continuously
2
prosecute all persons guilty of” maintaining, permitting, or allo wing a nuisance in violation
of law until the nuisance is abated and removed; and
WHEREAS, California Code of Civil Procedure Section 731 gives “the city attorney
of any town or city in which [a] nuisance exists” the authority to file a civil action to aba te
that nuisance pursuant to state nuisance laws; and
WHEREAS, California Civil Code Section 52 authorizes the city attorney to enforce
civil rights protections under the Unruh Civil Rights Act; and
WHEREAS, California Civil Code Section 1789.20 authorizes the city attorney to
prosecute misdemeanor actions or institute equity proceedings for violations of state law
governing credit services; and
WHEREAS, California Business and Professions Code Section 13301 authorizes
the city attorney to enforce state law governing weights and measures for automatic
checkout systems; and
WHEREAS, California Business and Professions Code Section 1720 4 authorizes
actions for injunctive relief under the Unfair Competition Law to be prosecuted by “a city
prosecutor in a city having a full-time prosecutor in the name of the people of the State of
California upon their own complaint or upon the complaint of a board, officer, person,
corporation, or association, or by a person who has suffered injury in fact and has lost
money or property as a result of the unfair competition” and civil actions for penalties to
be brought “by any city attorney of any city and county, or, with the consent of the district
attorney, by a city prosecutor in any city having a full-time city prosecutor”; and
WHEREAS, California Health and Safety Code Section 1569.43 authorizes the city
attorney to institute and conduct prosecutions for violations of state law gover ning
3
residential care facilities for the elderly; and
WHEREAS, California Health and Safety Code Section 25191.2 authorizes the city
attorney to bring actions to enforce violations of state law governing hazardous waste
control; and
WHEREAS, California Government Code Section 41803.7 provides that whenever
a “city attorney is acting as a prosecutor in a criminal case pursuant to any provision of
law or under a city charter, the city attorney shall have the power to issue subpoenas in
a like manner as the district attorney”; and
WHEREAS, the California Court of Appeal has recognized in California Restaurant
Association v. Henning (1985) and City and County of San Francisco v. Uber
Technologies, Inc. (2019) that “the use of subpoenas as an investigatory tool is an
accepted and established part of the administrative process”; and
WHEREAS, the United States Supreme Court has held in United States v. Morton
Salt Company (1950) that an administrative inquiry will be enforced if “(1) it relates to an
inquiry which the administrative agency is authorized to make; (2) seeks information
reasonably relevant to that inquiry; and (3) is not too indefinite .”
4
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Santa Monica Municipal Code Section 2.32.040 is hereby added to
read as follows:
2.32.040 City Attorney Investigative Authority
(a) In investigating any matter where the City Charter, an ordinance of the
City, state law, or federal law grants to the City Attorney the duty or power to
investigate, enforce, or prosecute a matter, the City Attorney shall have the power to:
(1) Inspect, upon reasonable notice, all documents, physical materials,
and other items required to be maintained under any provision of the
Government Code or this Municipal Code;
(2) Issue subpoenas for the attendance and testimony of witnesses,
and the production of documents, physical materials, and other items;
(3) Issue written interrogatories;
(4) Administer oaths and affirmations and take evidence;
(5) Petition a court of competent jurisdiction to compel the attendance
and testimony of witnesses, the answering of written interrogatories, and the
production of documents, physical items, and other items.
The City Attorney may exercise these powers prior to or following the filing of any civil,
criminal, or administrative action.
(b) The City Attorney shall determine and establish the form of the subpoena
issued pursuant to this section.
5
(c) Destruction or concealment of items requested pursuant to a subpoena
issued under this section shall constitute a misdemeanor and shall be punishable as set
forth in Section 1.08.010 of this Code.
SECTION 2. Santa Monica Municipal Code Section 2.32.050 is hereby retitled as
follows:
2.32.050 Form of City Council subpoena.
SECTION 3. 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 4. 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, cla use, 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 5. 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
6
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