Joint Special CC/Successor/BFPD
12/5/22 06:00 PM
City Manager Department
Matthew Summers
Resolution
Doc ID: 5192
AGENDA ITEM
AGENDA MATTER:
REQUEST FOR VOTE OF NO CONFIDENCE IN MAYOR COURTNEY
EXECUTIVE SUMMARY:
Councilmember Rose and Mayor Pro Tem Noble have requested that the City Council consider adopting a Resolution expressing a vote of no confidence in Mayor Courtney related to his conduct.
DISCUSSION:
On December 20, 2021, the City Council for the City of Barstow initiated a third-party investigation into allegations that Mayor Courtney was or had been interfering with the administration of City personnel and threatening the employment of several City employees. The City arranged for an outside third-party investigator to conduct the investigation, under the supervision of outside counsel. The Investigator interviewed the Mayor and 19 other individuals and reviewed relevant documents.
On November 7, 2022 the City released a public summary of the results of the third-party investigation of Mayor Courtney’s conduct. The public summary stated that the Investigator made the following findings based on the preponderance of evidence standard:
1. Mayor Courtney engaged in inappropriate behavior regarding the hiring of a City employee and provided false information to the former interim City Manager about the matter.
2. Mayor Courtney also engaged in intimidating behavior, threatening to terminate the employment of several City employees who he did not favor or who were connected to his political rivals and/or opponents. Of the several City employees who alleged having their jobs threatened by the Mayor, the Investigator found that only one of the employees did not have their job threatened by the Mayor.
3. Mayor Courtney engaged in inappropriate operational activities and direction on matters that are reserved for the City Manager.
4. Mayor Courtney attempted to elicit the City of Barstow Chief of Police to arrest and/or issue citations to Mayor Courtney's political rivals and to arrest those who spoke out against Mayor Courtney at City Council meetings.
5. Mayor Courtney revealed confidential and sensitive City Council Closed Session Meeting information to others who had no need or right to know the information.
6. Mayor Courtney made inappropriate comments concerning City employees.
7. Mayor Courtney used various manipulation tactics on employees to pit one employee against another to engender loyalty to himself.
8. Mayor Courtney employed heavy-handed communication techniques with various employees leaving the employees feeling that their jobs were in danger.
In response to these findings, in closed sessions the City Council took the following steps:
Joint Special CC/Successor/BFPD
12/5/22 06:00 PM
City Manager Department
Matthew Summers
Resolution
Doc ID: 5192
AGENDA ITEM
1. Directed the Mayor to refrain from communicating with any City employees, except for the City Manager, the 911 system, or as allowed by the First Amendment or other applicable law;
2. Directed that the Mayor be barred from City Hall except as his physical presence is legally required by applicable law, such as for Council Meetings;
3. Directed the Mayor to not provide any direction to any City employees other than the City Manager, and then, only as part of a City Council majority vote in a lawful meeting;
4. Directed the Mayor to not retaliate against any individual who he knows or who he may reasonably anticipate made a complaint, was a witness or otherwise participated in this investigation, nor to attempt to influence any individual who he knows or who he may reasonably anticipate made a complaint, was a witness or other person who otherwise participated in this investigation; and
5. Referred the matter to the San Bernardino County District Attorney’s Office.
At the November 21, 2022 City Council meeting, Councilmember Rose and Mayor Pro Tem Noble requested that the City Council consider a vote of no confidence in Mayor Courtney.
City’s Censure Policy and Procedures
The City Council has previously considered and adopted censure motions regarding Mayor Courtney’s past conduct. The City’s Censure Policy is intended to provide “the mechanism by which the City Council, acting as a whole, can discipline and punish any of its members who violate state or federal laws, city ordinances, or policies.” City staff recommends that the proposed No Confidence Resolution be treated similarly to how the City treats censure motions.
A No Confidence Resolution, akin to Censure, by the City Council constitutes an official expression of disapproval and extends to constitute a declaration by the Council, if adopted, that the Council lacks confidence in the Mayor to continue to serve as Mayor. Although a censure represents the opinion of at least a two-thirds majority of the members of the City Council stating an official reprimand, it is not a suspension, nor does it result in removal of the Mayor from the Office of Mayor. The City Council separately has the power to remove the Mayor from certain positions within the control of the City Council, i.e. seats on certain outside agency governing boards, and may do so only after separately considering any proposed specific position in a noticed public meeting under the Brown Act. At this City Council meeting, the City Council will only be considering a potential No Confidence Resolution.
This hearing is not a judicial proceeding and is not subject to judicial rules of evidence, crossexamination, or admissibility of evidence. A Councilmember or Mayor who is the subject of a censure or no confidence request is entitled to due process, with notice and an opportunity to respond and provide a defense. Mayor Courtney was provided with a copy of this Agenda Report once completed and distributed to the City Council and the public.
The City Council acts as a factfinder in a censure proceeding; and as such, like other City Council hearings, Councilmembers may ask questions of staff, each other, or any public speakers. Members of the public are not under oath and may freely refuse to answer any questions. Any motion to censure, or as here, adopt a No Confidence Resolution, as to the Mayor or a Councilmember should recite clear and fact-supported reasons for the proposed action and should include direction to adopt a resolution setting forth those reasons. Any motion to censure and adopt a No Confidence Resolution must be adopted by a Joint Special CC/Successor/BFPD
12/5/22 06:00 PM
City Manager Department
Matthew Summers
Resolution
Doc ID: 5192
AGENDA ITEM
two-thirds majority vote of the City Council, under the current Censure Policy.
The City’s Censure Policy creates a procedure for how censure motions are to be handled. At the hearing, the member of Council subject to the censure request must be given an opportunity to make an opening and closing statement and to question their accusers. The member of the Council subject to censure may be represented by another party who may speak on their behalf or may speak for themselves.
Proposed Procedure for No Confidence Resolution
The following procedure is recommended to be followed for a No Confidence Resolution, with this item to be chaired by Mayor Pro Tem Noble, implementing these policies. Councilmembers Rose and Mayor Pro Tem Noble should be provided the opportunity to summarize their no confidence request.
Mayor Courtney should be provided the opportunity to present an initial response or rebuttal to the no confidence resolution.
Public testimony on the resolution should be allowed. Upon the completion of such testimony, the opportunity for public input should be closed.
Councilmembers Rose and Noble should be provided the opportunity to present final comments on the resolution.
Mayor Courtney should be provided the opportunity to present a final response or rebuttal to the resolution.
Any Councilmember may then ask questions.
Any Councilmember may then provide comments regarding the matters presented.
At this point in the proceedings, any Councilmember who wishes to make a motion can do so. The primary options for a motion include (a) take no action on the resolution, either by motion or by default, (b) deny the resolution, or (c) approve the resolution. As indicated above, a motion to adopt the resolution expressing no confidence in Mayor Courtney should recite clear and fact-supported reasons for the proposed action. The City’s current Censure Policy, adopted via Resolution No. 4289-2006, requires a vote to adopt a Resolution making findings formally censuring a Councilmember be approved by a twothirds vote of the City Council.
Subject to a second, any motion made should be deliberated and, upon the completion of deliberations, a vote should be taken on the resolution. The Mayor, as the subject of the resolution that may be made, is advised to abstain from any vote on any resolution involving himself.1 1 This is under the general due process rule that no person may serve as a judge in their own case. (See In re Murchison (1955) 349 U.S. 133, 136 [“A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.”].) Joint Special CC/Successor/BFPD
12/5/22 06:00 PM
City Manager Department
Matthew Summers
Resolution
Doc ID: 5192
AGENDA ITEM
FISCAL IMPACT:
There are no fiscal impacts as a result of this item.
RECOMMENDED ACTION:
Staff recommends that the City Council consider Councilmember Rose and Mayor Pro Tem Noble’s request for a vote of no confidence, and in so doing consider any response or rebuttal from Mayor Courtney, hear public testimony and take any action determined to be appropriate based on the matters presented and deliberated.
Attachments:
Exhibit A -Resolution No. ____-2022 Expressing a Vote of No Confidence in the Mayor Exhibit B - Resolution No. 4289-2006 [Adopted Ethics Code and Censure Policy]