CITY COUNCIL STAFF REPORT
Meeting: November 7, 2023
Subject
Adoption of Code of Ethics and Conduct for Elected and Appointed Officials.
Recommended Action
Adopt Resolution No. 23______ adopting the City of Cupertino Code of Ethics and Conduct for Elected and Appointed Official and rescinding the current Ethics Policy.
Reasons for Recommendation
The City Council adopted the current City of Cupertino Ethics Policy (Resolution No. 20‐011, Attachment A) on January 21, 2020. The January 2020 Ethics Policy replaced the policy adopted by Council in November 2018 (Resolution No. 18‐115, Attachment B), which the City Council voted to rescind on January 15, 2019.
The City’s Ethics Policy was identified as an area of concern by the Santa Clara County Civil Grand Jury’s December 2022 Report, “A House Divided: Cupertino City Council and Staff” (Attachment C); the May 2023 Fact Finding Report prepared by Linda Daube, Esq. (Attachment D); and the July 2023 Enterprise Leadership Assessment prepared by the City’s internal auditor, Moss Adams LLP (Attachment E). In particular, Ms. Daube recommended a revision of the current Ethics Policy using the November 2018 Ethics Code as “the recommended starting point.” On May 9, 2023, the City Council considered Ms. Daube’s report and directed staff to return to Council with an agenda item to consider revisions to the current Ethics Policy, consistent with Ms. Daube’s recommendation.
On September 19, 2023, the City Attorney’s Office presented these concerns and the 2018 Ethics Code to the City Council, and solicited Council input on revisions to the Ethics Policy. Following deliberations, Council voted unanimously to direct the City Attorney to return with a revised Ethics Policy based on the 2018 Ethics Code, with the following direction:
1. That mechanisms for disciplinary actions for ethics violations as detailed in the City Council Procedures Manual be incorporated into the Ethics Policy;
2. That a mechanism for holding elected and appointed officials accountable to timely completion of required documentation, including especially Form 700 Disclosures;
3. That the City Attorney and City Manager direct staff to periodically review the policy and provide training to elected and appointed officials; and
4. That the City Attorney to incorporate the comments from all Councilmembers and best practices for implementation, for accountability, and bring back a revision to achieve the ethics policy goals, taking into consideration the results of public outreach and public comments, as appropriate; with flexibility for the City Attorney to include options for Council to choose from.
The City Attorney’s Office incorporated Council’s direction, as well as considering other input from individual Councilmembers, into a revised Code of Ethics based on the 2018 Ethics Code. Redlined and clean versions of the revised Ethics Code are presented in Attachments F and G, respectively. The revised Ethics Code reflects the following updates to the 2018 Code:
Covered Officials: Coverage of the proposed Ethics Code would be extended to department heads as well as elected officials, Council appointees, and the City Manager, City Attorney, the City Clerk, and the Treasurer. FPPC Reporting: Language is added to the proposed Code to expressly state that all Members have an obligation to comply with California Fair Political Practices Commission (FPPC) regulations requiring the disclosure of economic interests.
The City Attorney’s Office recommends that additional sanctions for such non‐ disclosure by commissioners and non‐Council committee members be addressed in upcoming revisions to the Commissioner’s Handbook.
Conflicts of Interest: Conflict of interest protections are extended to require recusal where an Official has an interest that “materially interferes with the City Official’s ability to make an impartial decision in the best interest of the City” and to clarify requirements to avoid conflicts of interest in quasi‐adjudicatory matters. In addition, the revised conflict of interest rules require disclosure of, but not recusal for, “a Member’s affiliation or relationship with any organization, entity, or individual that would be materially affected by a decision regarding a matter before the legislative body.” The proposed language balances Councilmembers’ interest in strengthening protections against conflicts of interest with the desire to avoid an overbroad recusal requirement. Enforcement: The disciplinary procedures in the 2018 Ethics Code are revised and include more detail regarding the procedures for and form of discipline that may be imposed on Councilmembers or commission or committee members.
With respect to Councilmembers, the proposed revisions would require alleged violations of the Code to be referred to the City Attorney for review, in consultation with the City Manager. The Mayor would continue to play a role in the disciplinary process for commissioners and non‐Council committee members, consistent with the fact that those appointed officials serve at the pleasure of Council.
Other Revisions: The proposed Ethics Code includes revisions to ensure consistency with the recently adopted City Council Procedures Manual and to ensure that the First Amendment rights of City Officials are recognized, as well as minor edits for clarity, conciseness, and consistency.
The City Attorney’s Office believes the proposed language is consistent with direction provided by the City Council at its September 19 meeting and recommends that the Council adopt the enclosed resolution (Attachment G) adopting the revised Ethics Code and rescinding the 2020 Ethics Policy.
Sustainability Impact
No sustainability impact.
Fiscal Impact
No fiscal impact.
California Environmental Quality Act
Not applicable.
_____________________________________
Prepared by: Christopher D. Jensen, City Attorney
Approved for Submission by: Pamela Wu, City Manager
Attachments:
A – Resolution No. 20‐011 (Adopting the City of Cupertino Ethics Policy) B – Resolution No. 18‐115 (Adopting the City of Cupertino Code of Ethics and Conduct for Elected and Appointed Officials)
C – Civil Grand Jury Report, “A House Divided: Cupertino City Council and Staff” D – Fact‐Finding Report
E – Enterprise Leadership Assessment
F – Redline of 2018 Ethics Code
G – Draft Resolution No. 23‐_______