PURPOSE
This policy applies only to the Mayor and City Council members, as well as the Planning Commission and all other City Council appointed commissioners, for certain improper conduct that may result in censure. It carries no additional penalty and no fine, and/or loss of position or appointment.
RELEVANT POLICY
It is the policy of the City Council of Manteca that all of its members (both elected and appointed) shall abide the City’s Code of Ethics, the Brown Act, the Workplace Civility and Respect Policy, and any applicable laws concerning conflict of interest. Violations of such laws and/or policies tend to injure the good name of the City of Manteca and to undermine the effectiveness of the City Council and appointed bodies as a whole. Nothing in this policy shall preclude individual Councilmembers from making public statements regarding such alleged conduct. At any point during any of the processes described in this policy, the City Council may refer the matter, as appropriate, to the San Joaquin County District Attorney’s Office for investigation (or any other appropriate local or state agency depending on the nature of the violation). Following such a referral, the City Council may still proceed with any action(s) it chooses to undertake under the provisions of this policy. While the City Council has broad discretion in deciding actions it may choose to take in response to violations of the Code of Ethics, the Brown Act, the Workplace Civility and Respect Policy, and applicable conflict of interest laws, this policy provides definitions and procedures related to two types of action: admonition and censure. Only the City Council members and Mayor have the authority to bring forward and/or issue an admonition and/or censure.
Admonition: An admonition may typically be directed to any member of the City Council or appointed commissioner, reminding them that a particular type of behavior is in violation of law or City policy, and that, if it occurs or is found to have occurred, could make a member subject to censure. An admonition may be issued in response to a particular alleged action or actions, although it would not necessarily have to be triggered by such allegations. An admonition may be issued by the City Council prior to any findings of fact regarding allegations, and because it is a warning or reminder, would not necessary require an investigation or separate hearings to determine whether the allegation is true. An admonition may also be treated as taking action to criticize a council member’s conduct. The right to criticize is protected by the First Amendment, and may be done individually, or as a whole, by motion. An admonition need not be noticed by the City Council.
Censure: Censure is an official reprimand or condemnation made by City Council in response to specified conduct by one of its own members or an appointed commissioner. Censure is disciplinary in nature, and requires the formal adoption of a resolution setting forth the Councilmember’s or Commissioner’s alleged violations of law and/or policies. Per this policy, censure shall require an investigation by an ad hoc committee of the City Council (unless the subject Councilmember/Commissioner agrees to the censure), and will protect the due process rights of the councilmember. Censure carries no fine or suspension of the rights of the Councilmember or Commissioner as an elected or appointed official, respectively.
REQUEST FOR CENSURE
A request for censure may be submitted by any Councilmember (including the Mayor) in writing to the City Clerk and Mayor (unless the Mayor is the subject of the request) against any other Councilmember (including the Mayor) or appointed Commissioner. The request must contain the specific charges on which the proposed censure is based. The request for censure shall be read onto the public record at the next regularly scheduled City Council meeting and noticed on the agenda consistent with the Brown Act and City policies and procedures. Copies of the request for censure shall be delivered to all Councilmembers 72 hours before said meeting. The forms to be filled out for a request for censure shall be drafted by the City Manager (or her/his designee) in consultation with the City Attorney’s Office.
AD HOC COMMITTEE CONSIDERATION
Upon receipt by the City Clerk and Mayor of the request for censure and related evidence, and upon reading into the record the request for censure at the City Council meeting by the City Clerk, the Mayor shall appoint an ad hoc Committee of the City Council to conduct a preliminary review of the request, unless the Mayor is the subject of the censure or the Mayor is the requesting Councilmember. If the Mayor is the subject of or the requesting Councilmember of the censure, the Vice Mayor shall appoint the Committee. If both Mayor and Vice Mayor are the requesting Councilmember and/or subject of the censure, the longest serving councilmember shall appoint the ad hoc Committee. The ad hoc Committee shall consist of two councilmembers. The ad hoc Committee shall not include the Councilmember making the request or a Councilmember who is the subject of the request. Appointed commissioners cannot serve on the ad hoc committee. The ad hoc Committee may elect to work with a member of the City Manager’s Office, a member of the City Clerk’s Office, and/or a member of the City Attorney’s Office for purposes of having an assigned staff to aid the ad hoc Committee in its investigation and meeting(s). (1) The City Clerk shall deliver or cause to be delivered any evidence (or additional evidence) to each member of the City Council at least 72 hours prior to the first meeting of the ad hoc Committee. (2) At a meeting held no sooner than 72 hours of receipt of all evidence, the ad hoc Committee shall consider the request together with any evidence submitted by the Councilmember making the request and the Councilmember/Commissioner subject to the request, and shall determine whether:
(i) Further investigation of the charges is required; or (ii) The recommended charges should be forwarded to the Council for a censure hearing; or (iii) No action is required.
(3) If the ad hoc Committee determines that no further action should be taken with regard to the request, the ad hoc Committee shall make such report to the Council at the next regularly scheduled City Council meeting. (4) If the ad hoc Committee determines that further investigation is required, the ad hoc Committee shall conduct an investigation, elect to set additional meeting (if necessary), and arrive at a recommendation regarding the request and report its conclusions, findings, and a summary of its proceedings to the City Council at its earliest opportunity. (5) If the ad hoc Committee does not report its recommendations and findings to the City Council within 30 days following the formation of the of the Committee, the matter shall automatically be sent to the City Council for a hearing at the next regularly scheduled meeting date. (6) Any meeting undertaken by the ad hoc Committee shall be subject to and consistent with the Brown Act as well as any and applicable City policies and procedures.
HEARING
(1) Generally. The hearing on the censure recommendation by the ad hoc Committee shall be agendized and considered at the first regularly scheduled meeting after the recommendations of the ad hoc Committee have been submitted in writing to all Councilmembers and the City Clerk. (2) Open Hearing and Hearing Chair. The hearing shall be chaired in an open session by the Mayor unless the Mayor is a party to the censure action, in which case the Vice Mayor and/or longest serving Councilmember shall chair the hearing. (3) Hearing Format.
a) The hearing shall generally proceed by a reading of the charges by the requesting Councilmember. The Hearing Chair shall then read the list of witnesses presented by both the requesting Councilmember and the subject Councilmember/Commissioner, subject to Section 3(i) below. b) The subject Councilmember/Commissioner (or her/his representative) may then elect to give an opening statement of no more than three (3) minutes in length. c) After an opening statement, the requesting Councilmember may present witnesses to testify, each limited to three (3) minutes in length. d) The subject Councilmember/Commissioner (or her/his representative) may then answer in rebuttal after each witness, limited to three (3) minutes in length. e) The subject Councilmember/Commissioner may then present witnesses to testify, each limited to three (3) minutes in length. f) The requesting Councilmember may then answer in rebuttal, limited to three (3) minutes in length. g) The subject Councilmember/Commissioner (or her/his representative) may then elect to give a closing statement of no more than three (3) minutes in length. h) The requesting Councilmember may then elect to give a closing statement of no more than three (3) minutes in length. i) The Hearing Chair shall limit testimony to be presented from witnesses only having direct knowledge of facts or circumstances relevant to the specific charges under consideration. As such, a witness list shall be presented to the Hearing Chair in writing by both the requesting and subject Councilmember/Commissioner no less than seventy-two (72) hours prior to the hearing. The Hearing Chair shall determine what witnesses have direct knowledge of the facts or circumstances prior to reading the list of witnesses presented as noted in Section 3(a) above. Moreover, the rules of evidence and judicial procedure applicable in courts of law shall not apply to this hearing, and the procedures shall be generally informal. j) Either the requesting Councilmember or the subject Councilmember/Commissioner may make a motion during the hearing to extend the time limits noted above. The Hearing Chair may extend a time limit if the Hearing Chair determines that additional speaking time is necessary to adequately address and/or consider the allegations and/or evidence. (4) Public Comment. Members of the public may speak in favor of or in opposition to the charge, subject to City Council policies and the Brown Act; the remaining Councilmembers may also speak to the charges. (5) Voting. Passage of the motion for censure shall require a majority vote of the City Council. The voting Councilmembers shall not recess to closed session for deliberation. If the motion for censure does pass, such motion shall become a part of the public record, a copy of which shall be made available upon demand to any member of the public. If the motion for censure does not pass, a new motion for censure on the same grounds may not thereafter be commenced against the same Councilmember unless new facts not presented at the hearing arise and/or are discovered.
MISCELLANEOUS
(1) This policy shall not apply retroactively.
(2) This policy may only apply to events, incidents, conduct, omissions, and/or actions that occur within 120 days after the discovery of such relevant events, incidents, conduct, omissions, and/or actions. (3) This policy and any amendments shall become effective immediately following a majority vote by the City Council. (4) When evaluating a request for defense or indemnification made by the censured Councilmember or Commissioner in litigation arising from the censured conduct, the record of the censure shall be considered by the Council. Such record shall not be determinative. Failure of the City Council to censure the conduct of a member or commissioner does not constitute a waiver of the body’s right to refuse to indemnify or defend the member or commissioner in an action.
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