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DA REPORT City of Poway
CITY COUNCIL
May 6, 2025
Honorable Mayor and Members of the City Council
Alan Fenstermacher, City Attorney
Alan Fenstermacher, City Attorney
[email protected]
Ordinance to Amend Poway Municipal Code to Allow Imposition of Administrative Citations and Penalties for Violations of Law
At the April 15, 2025 Regular City Council meeting, Mayor Steve Vaus initiated an item seeking City Council approval to bring an ordinance back for discussion authorizing the City Council to impose administrative citations with civil fines on members of the City Council that violate state and local law.
Specifically, Mayor Vaus mentioned violations of (1) Chapter 2.04 of the Poway Municipal Code ("PMC"), (2)the Brown Act, (3) the Public Records Act, and (4) state law regarding destruction of public records, as well as unilateral, unauthorized disclosure of information protected by City's attorney client privilege, the attorney work product doctrine, or any other privilege held by the City.
The City Council voted 4-1 to bring a proposed ordinance back for discussion and consideration, and as a result, the attached draft Ordinance (Attachment A) is being presented for that purpose. If approved, the Ordinance would authorize the City Council to issue and impose administrative citations and civil fines for the foregoing violations, but only after advance notice and a public hearing.
Recommended Action:
It is recommended the City Council introduce the attached Ordinance (Attachment A) for first reading by title only, waive further reading, and schedule the adoption of the Ordinance for the May 20, 2025 Regular City Council meeting.
Discussion:
Under the existing provisions of the PMC, "any responsible person who violates any provision of the Poway Municipal Code or regulation of the City, any condition of approval of a permit or entitlement, any condition of an environmental review, or any term or condition of any agreement with the City made pursuant to the police power may be issued an administrative citation by [a City] enforcement officer ... " (PMC 1.10.030) "Each and every day a violation exists constitutes a distinct offense, and a 1 of 6 May 6, 2025, Item #10
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May 6, 2025, Item #10separate citation may be issued for each day a violation occurs. A civil fine shall be assessed by means of an administrative citation issued by the enforcement officer and shall be payable directly to the City of Poway. Fines shall be assessed in amounts not to exceed $1,000 for each violation, or as follows: 1. A fine not exceeding $100.00 for a first violation; 2. A fine not exceeding $200.00 for a second violation of the same ordinance, term, or condition within one year from the date of the first violation; 3. A fine not exceeding $500.00 for a third violation of the same ordinance, term, or condition within one year from the date of the first violation; 4. A fine not exceeding $1,000 for each additional violation after the third violation of the same ordinance, term or condition within one year from the date of the first violation." PMC Chapters 1.08 (General Penalty) and 1.10 (Administrative Citations and Appeals) governing administrative citations and civil fines also contains procedural requirements, including the ability to appeal the matter. Additionally, the PMC authorizes the prosecution of any violation of the PMC as a misdemeanor or criminal infraction, as well as under any other remedy available under applicable law. In the typical, Code Compliance context, these other remedies -aside from criminal enforcement and administrative citations/civil fines -include forcible abatement pursuant to a warrant, receiverships, or civil actions seeking injunctions. Thus, under existing law, the City arguably has the ability to take enforcement action against a member of the City Council for any violations of the PMC, including issuing administrative citations and imposing civil fines. However, there is currently no ability for the City to take administrative action in response to violations of state law. If adopted, the Ordinance would amend the PMC to allow the City Council to directly issue administrative citations and impose civil fines (in the amounts listed above) on an individual member of the City Council for violations of the PMC, as well as for unauthorized disclosure of information protected by City's attorney client privilege, the attorney work product doctrine, or any other privilege held by the City, and violations of the Brown Act, Public Records Act, or state law provisions regarding destruction of public records. If adopted, the Ordinance would also provide the same general procedural safeguards in place now for administrative citations. In fact, for a citation issued to a member of the City Council, the Ordinance would require advance notice and a public hearing prior to the issuance of any administrative citation, which does not currently occur. Under the PMC, an administrative citation is issued without a hearing, but is subject to appeal. Specifically, here, the administrative citation process would be commenced at a public City Council meeting, requiring a Councilmember to make a motion and receive a second. Next, City staff would investigate the claim and bring the matter back to the City Council at a public hearing, with advance notice. The member of the Council subject to a potential administrative citation will have the opportunity to participate in the City Council discussion and action on the potential citation. An administrative citation would only be issued to the member of the City Council if at the 2 of 6
May 6, 2025, Item #10conclusion of that public hearing, the majority of the membership of the City Council votes in favor of the proposed citation and civil fines. Under the proposed Ordinance, there would be no appeal process because the matter would be heard in first instance by the City's highest, legislative body -the City Council -and there is no higher body to appeal to. However, the City Council's decision would be subject to judicial review in the same manner as any other final decision of the City Council. Environmental Review: None. Fiscal Impact: None. Public Notification: None. Attachments: A. Ordinance Reviewed/Approved By: -~i~ Assistant City Manager 3 of6 Reviewed By: Alan Fenstermacher City Attorney
May 6, 2025, Item #10ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF POWAY, CALIFORNIA, AMENDING CHAPTER 2.04 (CITY COUNCIL) OF THE POWAY MUNICIPAL CODE TO ALLOW IMPOSITION OF ADMINISTRATIVE CITATIONS AND PENALTIES FOR VIOLATIONS OF LAW WHEREAS, the City Council of the City of Poway desires to authorize the City Council to impose administrative fines on members of the City Council that violate the law, while ensuring each member is provided due process and a public hearing prior to the imposition of any such fines; and WHEREAS, the City Council of the City of Poway finds and declares that this has become necessary to ensure that every member of the City Council complies with state and local law, in order to limit the City's potential liability. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN AS FOLLOWS: SECTION 1: The above recitations are true and correct. SECTION 2: Section 2.04.100 of Chapter 2.04 (City Council) of the Poway Municipal Code ("PMC") is hereby amended to read as follows, with additions in underline: D. The City Council shall have the power to adopt a resolution of censure with respect to any member of the Council who violates this section, or any other section of the Poway Municipal Code. The City Council shall also have the power to issue administrative citations to any member of the Council for violations of this section, or any other section of the Poway Municipal Code, pursuant to Chapters 1.08 (General Penalty) and 1.10 (Administrative Citations and Penalties) thereof. The procedure for issuing administrative citations to members of the City Council is set forth in Section 2.04.120. This shall not limit any other remedy authorized by the PMC or otherwise available at law to the City Council with respect to the conduct of any individual member of the City Council. SECTION 3: Chapter 2.04 (City Council) of the PMC is hereby amended to add new Section 2.04.11 Oas follows: 4of6 2.04.110 Penalties A. The City Council shall also have the power to impose administrative citations and other authorized penalties on any member of the Council, pursuant to PMC Chapters 1.08 (General Penalty) and 1.10 (Administrative Citations and Penalties) and following to procedure section forth in Section 2.04.012 herein, for any of the following: 1. Unauthorized disclosure of inform;;1tion protected by City's attorney client privilege, the attorney work product doctrine, or any other privilege held by the City or City Attorney. ATTACHMENT A
May 6, 2025, Item #10Ordinance No. 2. Violations of the Ralph M. Brown Act (California Government Code section 54950 et seq.). 3. Violations of Public Record Act (California Government Code section 7920.000 et seq.). 4. Violations of Government Code sections 6200 and/or 6201 regarding destruction of public records. 5. Violations of Government Code sections 8314 and/or 54964.5 regarding use of City resources in connection with campaign activities. B. The process for imposing any citations and or other penalty authorized by this section 2.04.110 shall be initiated by a member of the City Council in the manner set forth in Section 2.04.120, and no citation or other penalty shall be imposed until, following prior written notice and a public hearing by the City Council, the majority of the City Council determines that a violation occurred. Page 2 SECTION 4: Chapter 2.04 (City Council) of the PMC is hereby amended to add new Section 2.04.120 as follows: 2.04.120 Procedure for City Council Citations and Penalties A. If any individual member of the City Council believes another member of the City Council is potentially subject to an administrative citation and civil fine for a violation set forth in Section 2.04.100 or 2.04.110 above, he or she may raise the matter as a Councilmember initiated item at a public meeting of the City Council for the sole purpose of obtaining a second to initiate the investigation process. B. If a second is received on a motion to initiate the administrative citation process, City staff and the City Attorney's office will investigate the matter and bring the results of the investigation back to the City Council as a public hearing for consideration. Any decision to issue an administrative citation and impose civil penalties against another member of the City Council shall require an affirmative vote of the majority vote of the membership of the City Council. The member of the Council subject to a potential administrative citation shall receive advance notice of the hearing on the potential citation and be given the opportunity to participate in the City Council discussion of and the vote on the potential administrative citation. C. The City Council's decision to issue an administrative citation and impose civil penalties against another member of the City Council shall be final. SECTION 5: The City Council finds that this Ordinance is not a "project" pursuant to the California Environmental Quality Act ("CEQA"). SECTION 6: If any provisions of this Ordinance or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of 5 of 6
May 6, 2025, Item #10Ordinance No. Page 3 the act which can be given effect without the invalid provisions or application, and to this end the provisions of this act are severable. SECTION 7: This Ordinance shall be codified. EFFECTIVE DATE: This Ordinance shall take effect and be in force thirty (30) days after its adoption. CERTIFICATION/PUBLICATION: The City Clerk shall certify the adoption of this Ordinance and cause it or a summary of it, to be published with the names of the City Councilmembers voting for and against the same in the Poway News Chieftain, a newspaper of general circulation in the City of Poway within fifteen (15) days after its adoption and shall post a certified copy of this Ordinance in the Office of the City Clerk in accordance with Government Code § 36933. INTRODUCED AND FIRST READ at a Regular Meeting of the City Council of the City of Poway, California, held the 6th day of May, 2025, and thereafter. PASSED AND ADOPTED at a Regular Meeting of said City Council held the 20th day of May, 2025 by the following vote, to wit: AYES: NOES: ABSTAINED: ABSENT: DISQUALIFIED: Steve Vaus, Mayor ATTEST: Carrie Gallagher, CMC, City Clerk 6 of6