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4 DATE:March 10, 2025
TO: Mayor and Members of the City Council
President and Members of the Estero Municipal Improvement District (EMID) Board of Directors
VIA: Stefan Chatwin, City/District Manager
FROM:Benjamin L. Stock, City Attorney/District Counsel
DEPARTMENT:City Attorney/District Counsel
SUBJECT:RECONSIDERATION OF A CODE OF CONDUCT FOR ELECTED
AND APPOINTED OFFICIALS
RECOMMENDATION
It is recommended that the City Council/EMID Board of Directors1 reconsider a Code of Conduct for Elected and Appointed Officials and provide direction to staff.
EXECUTIVE SUMMARY
On January 21, 2025, Mayor Jimenez requested a future agenda item to reintroduce a Code of Conduct for the City Council. The Mayor referenced the San Mateo County Board of Supervisors recent adoption of a new code of conduct. This request was supported by a majority of the Council.
BACKGROUND
On October 5, 2020, the City Council appointed an Ad Hoc Subcommittee comprised of former Mayor/President Mahanpour, Council Member/Director Froomin, and Planning Commissioner Wykoff to draft a recommended Code of Conduct and bring it to the City Council/Board of Directors for action. The Subcommittee created a recommended Code of Conduct for Foster City/EMID Elected and Appointed Officials that was then adopted via City Resolution No. 2020-116 and EMID Resolution No. 3543 on November 2, 2020(Attachment 1).
1 Hereafter, any reference to the City Council includes the EMID Board of Directors.
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4 The stated purpose of the 2020 Code of Conduct read as follows:
The purpose of this policy is to assure that all Foster City/Estero Municipal Improvement District (City/District) elected and appointed officials, while exercising their office, conduct themselves in a manner that will instill public confidence and trust in the fair operation and integrity of City/District government and that the highest standards of respect and integrity are upheld between and among elected and appointed officials and in their treatment of City/District staff and constituents in any public setting.
The 2020 Code of Conduct set forth guidelines relating to the conduct of appointed and elected officials in a number of areas including meeting decorum, conduct toward the public, conduct toward staff, City Council conduct with appointed boards, committees and commissions, and representations to the public. It also provides procedures relating to setting agendas for City Council meetings as well as the selection of Council Subcommittees. The Code of Conduct generally reinforces the ethical standards found in State law and in some areas exceeds those standards.
The 2020 Code of Conduct also outlined a process for the reporting and investigation of complaints, which allowed any member of the public, including members of commissions or committees, the City/District Manager, the City/District Attorney and City/District staff to report violations of the Code of Conduct to the Mayor/President or to the Vice Mayor/Vice President if the complaint involved the Mayor/President.
The City/District Manager and the City/District Attorney as well as the Mayor/President (or Vice Mayor/Vice President) formed the “evaluation committee” and they were tasked with determining the validity of the complaint and an initial course of action. These complaints required written notification to the member who is the subject of the complainant within 72 hours of receipt of the complaint, an investigation be undertaken by the evaluation committee and a determination on the appropriate course of action, depending on the seriousness of the reported violation. Between adoption of the Code of Conduct in 2020 and December 13, 2021, eight complaints were filed, reviewed and resolved (with four of the complaints relating to the same issue). The reporting and investigating process took a significant amount of time for the evaluation committee.
On December 13, 2021, the City Council discussed amending, suspending or rescinding the Code of Conduct. After a robust discussion, the Council voted 3-2 to rescind the Code of Conduct.
ANALYSIS
As indicated in the December 13, 2021 Staff Report, there are numerous laws that apply to the conduct of Councilmembers to promote ethics and transparency within local jurisdictions.
Existing Transparency and Ethics Laws Applicable to the Council The two primary statutory schemes addressing conflicts of interest are the Political Reform 4900-3060-4319 v1
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4 Act and supporting Fair Political Practices Commission (“FPPC”) regulations, along with Government Code section 1090. Conflict of interest rules are based on the idea that public officials owe the highest duty of loyalty to the public, and that their personal or private financial needs should not be part of their political decisions.
The Political Reform Act2 addresses financial conflicts of interests of public officials through disclosure of their economic interests and prohibitions on participation in making decisions that the official knows or has reason to know will result in a material financial effect on one of the official's economic interests. The FPPC has also adopted regulations implementing the Political Reform Act.3 Public officials are prohibited from making, participating in, or in any way attempting to use their official position to influence a governmental decision in which they know or have reason to know they have a financial interest. 4 An official has a conflicting financial interest "if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official, a member of his or her immediate family"5 or on a specified interest in any relevant business entity, real property, or income or gift source.
Public officials report their financial interests in their annual Form 700 statements. These disclosure requirements apply to nearly every local elected official, members of commissions, boards, committees and other local bodies with significant decision making authority, and staff members designated by the local agency. 6 The forms require the disclosure of interests in real property, investments, business positions, sources of income, and gifts.7 The forms are filed once the official assumes office, each year thereafter (by April 1), and after leaving office.8
Government Code section 1090 bans self-dealing, so that officials cannot personally benefit from contracts with their agency. This law makes it illegal for officials to have financial interests in contracts that they make in their official capacities or any contract made by the board or body of which the official is a member. 9 Unlike the Political Reform Act, the prohibited interest does not need to have a “material effect” on the public official’s source of income. “Any interest, except a remote one, which would prevent the official from exercising absolute loyalty and undivided allegiance to the best interest of the state is prohibited under the statute.”10 There are exceptions for what are designated as “remote” and “non-interests”, which may allow the contract to be executed.11 Two key California laws that ensure that local government actions are done openly and that records are accessible so that the public can monitor the “people’s business” are the Brown Act and the Public Records Act.
2 Government Code §81000 et seq.
3 2 California Code of Regulations §18110 et seq.
4 Government Code §87100; see also 2 California Code of Regulations §§18700, 18702-18702.5. 5 Government Code §87103.
6 Government Code § 82019.
7 Government Code §§ 87206 -87210.
8 Government Code §§ 87202 – 87204.
9 Government Code § 1090.
10 Id. at 328.
11 Government Code §§ 1091, 1091.5.
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4 The Brown Act requires that public agency meetings are open to the public, and all persons are allowed to attend and participate in the meeting. 12 A “meeting” is any gathering of a majority of the members of a legislative body to hear, discuss or deliberate about any item that is within its subject matter jurisdiction. 13 A meeting can occur in a number of different settings, including through use of technological devices (such as phones or e-mail) or social media platforms 14 (e.g., Facebook, Twitter), where a majority of the members use to discuss, deliberate, or take any action on any item of business within the subject matter jurisdiction of the entity.15 When a “meeting” occurs under the Brown Act, certain agenda requirements must be met16 and the public must be allowed an opportunity to speak.17 Under the Public Records Act,18 members of the public have the right to inspect and obtain copies of “any writing containing information relating to the conduct of the public’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics.”19 This right of access extends to electronic data regarding city business (e.g., emails, texts, etc.), maintained in personal accounts or on personal devices. 20 This right is enshrined in the California Constitution 21 and is broadly construed by the courts to further the public’s right of access to public records.
AB 1234 imposes mandatory ethics training requirements on all local elected officials, legislative bodies eligible to receive reimbursements, and employees designated by the legislative body.22
In addition to the foregoing statutory requirements, the City Council must also abide by the rules of conduct for all meetings as set forth in Chapter 2.08 of the Foster City Municipal Code (FCMC).23 These rules provide the Council with clear guidance on how the meeting shall be conducted including specific provisions for the place and time of meetings and the content of the agenda which incorporate various provisions of the Brown Act. These rules also set forth rules for addressing the Council and general decorum for the meeting. For example, FCMC Section 2.08.250(A) provides, among other things, that Council Members must preserve order and decorum and shall not disturb another Member when speaking or refuse to obey the presiding officer. These rules also include provisions regarding conflicts of interest. Specifically, FCMC Section 2.08.280 provides that Council Members who are prohibited by statute from being interested in any contract made by the City, unless such interest is remote and specific steps are taken to assure disclosure. 12 Government Code § 54950 and following.
13 Government Code § 54952.2(a).
14 See Government Code § 54952.2 (codifying rules on interaction with other legislative body members and the public when on social media.)
15 Government Code § 54952.2(b).
16 Government Code §§ 54954.2, 54956, 54954.2(a)(1).
17 Government Code § 54954.3(b).
18 Government Code § 7920.000 and following.
19 Government Code § 7920.530
20 City of San Jose v. Superior Court (2017) 2 Cal.5th 608. 21 Cal. Constitution, art. I, § 3.
22 Government Code §§ 53234-53235.2.
23 See section 2.04.040 of the Estero Municipal Improvement District Code and Chapter 2.08 of the City of Foster City Municipal Code
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4 Other Jurisdictions
The San Mateo County Board of Supervisors recently adopted a Code of Conduct on January 14, 2025 (Attachment 2). The stated purpose of the Code of Conduct is to enhance public confidence in the integrity, effectiveness, respectfulness, and fairness of the Board and of San Mateo County government. It provides a general framework for Board members’ performance of their official duties and sets forth standards and practices that build trust and establish and sustain collegiality and positive relations among Board members and between Board members and staff. The County’s Code of Conduct states that it supplements, and does not supplant, other existing laws, policies and procedures that apply to members of the Board of Supervisors. The County’s Code of Conduct does not include any investigatory component but does include the enforcement tool of censure.
A number of cities within San Mateo County have adopted policies or protocols to govern the conduct of their governing boards and commissions and committees. These policies or protocols have varying levels of detail and content but generally include guidelines on council communications with staff, the public and each other and establish expectations on council roles and responsibilities. Staff has included a few different examples of policies or protocols adopted by cities in San Mateo County to assist the Council in its discussion.
The City of Burlingame City Council adopted a Code of Conduct that emphasizes the principles of roles, responsibilities, and respect (Attachment 3). Burlingame’s Code of Conduct provides guidance on a variety of topics, including roles, policies and communication and conduct. It also discusses sanctions, which could include a reprimand or formal censure or loss of committee assignments.
The Town of Atherton City Council adopted a Handbook for the Members of the City Council, which includes a Code of Conduct that is intended to “encourage public confidence in the integrity of local government and its fair and effective operation.” (Attachment 4, Appendix B). Atherton’s Code of Conduct includes twenty policy statements to implement the Code of Conduct on topics such as communication, coordination with staff, disclosure of corruption, etc. The Code of Conduct does not include any enforcement or investigatory component for violations.
The City of South San Francisco City Council adopted a very robust City Council Procedures and Protocols (“Procedures”) that covers a number of topics (Attachment 5).
South San Francisco’s Procedures provides guidance on roles and responsibilities, communications, and the conduct of meetings, among others. A significant amount of the guidance contained in the Procedures is a restatement of the law, the Roles and Responsibilities and Conduct sections in the Procedures provide specific expectations for the conduct of the governing body during and outside of meetings. The Procedures do not include any enforcement or investigatory component for violations.
There is no requirement that a governing body adopt a Code of Conduct. The City Council is already obligated to comply with a number of State and Municipal Code requirements that promote transparency, openness, and fairness in government and decorum, as 4900-3060-4319 v1
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4 discussed above. However, if the Council does wish to consider a Code of Conduct or other type of policy or protocols, the Council should give direction on the content that the Council would like to include in the document.
CALIFORNIA EQUALITY QUALITY ACT
This item does not constitute a project as defined by the California Environmental Quality Act (Public Resources Code § 21000, et seq.) (CEQA) as the adoption of the resolution does not have the potential to result in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment (14 Cal. Code Regs. § 15378.).
FISCAL IMPACT
There is no direct fiscal impact associated with this action.
CITY COUNCIL VISION, MISSION, AND VALUE/PRIORITY AREA
City Council Operations and Improved Community Engagement.
ATTACHMENTS
Attachment 1- 2020 City Council Code of Conduct
Attachment 2- San Mateo County Board of Supervisors Code of Conduct Attachment 3- City of Burlingame Code of Conduct
Attachment 4- Town of Atherton Council Handbook
Attachment 5- City of South San Francisco City Council Handbook