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1 RiversideCA.gov
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November 3, 2022
Code of Ethics and Conduct
Annual Review
Inclusiveness, Community
Engagement, Governmental Processes
Committee and Board of Ethics Ad Hoc
RiversideCA.gov
2 That the Committee:
1. Continue review of the Code of Ethics and Conduct;
2. Consider the recommendations by the Board of
Ethics on
August 4, 2022;
3. Consider the recommendations of the ICGC in the
2021 annual rev
iew of the Code of Ethics including
the City
Council recommendations of 2020; and
4. Direct staff to return to the Committee with a draft ordinance amending the Code
of Ethics with the
final
recommendations of the ICGC and BOE.
RECOMMENDATIONS
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Attachment D
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3 On September 27, 2022, the Committee reviewed these threshold issues as outlined in the staff report:
1. Pre-hearing conference
2. Hearing
A recap of the threshold issues above will be provided following the review of the following threshold issues:
3. Appeals
4. Sanctions
5. Miscellaneous
Discussion
RiversideCA.gov
4 3. Appeals
a. Can every decision be appealed?
b. What is the role of the BOE at the appeal?
c. Is an appeal appropriate?
d. Should any appeal be automatic?
e. What is a “de novo hearing”?
Threshold Issue - Appeals
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3 RiversideCA.gov
5 RMC
SECTION RMC LANGUAGE ISSUE BOARD
OF ETHICS
CITY
COUNCIL
2.78.080(E)(11)
11. Other than as provided for above, no decision or ruling made by the hearing panel at the pre-hearing conference is appealable to the City Council pursuant to the appeal procedures section of this chapter until after there is a final decision by the hearing panel following a hearing on the complaint.
ISSUE: What is appealable?
Should there be a separate
process for appealing a decision
at the pre-hearing conference?
2.78.090(A)
A. A decision by the hearing panel finding a violation of the Prohibited Conduct section of this chapter shall be automatically appealed to the City Council. The City Clerk shall place the appeal on the agenda of a regular meeting of the City Council within 30 City business days of the approval of the findings by the hearing by the hearing panel and shall notify the parties in writing of the hearing date.
On February 15, 2022, the City
Council approved the blue
insertions by introduction on an
ordinance not yet adopted.
2.78.090(B)
B. A decision by the hearing panel of the Board of Ethics not finding a violation of the Prohibited Conduct section of this chapter may be appealed to the City Council by either party. The appeal shall be taken by filing a written notice of appeal with the City Clerk within ten City business days following the date of the hearing by the hearing panel. The notice of appeal shall be in writing on a form provided by the City Clerk. The City Clerk shall place the appeal on the agenda for a regular meeting of the City Council within 30 City business days of the filing of the notice of appeal. The City Clerk shall notify the parties in writing of the hearing date
If the hearing panel finds
that a violation of the
prohibited conduct did not
occur, an appeal request should
be in writing and submitted to
City Clerk
ISSUE: Should all BOE Hearing
Panel (HP) findings (including
findings that a violation did not
occur) be automatically
appealed?
Appeal Procedures
RiversideCA.gov
6 RMC
SECTION RMC LANGUAGE ISSUE BOARD
OF ETHICS
CITY
COUNCIL
2.78.090(D)
D. The record on appeal shall consist of a transcript of the hearing before the hearing panel, as well as all tangible evidence and testimony considered at the hearing. No new evidence will be received or considered by the City Council at the hearing on the appeal.
During 2020 Annual Review of the
Code, the City Council requested
a provision allowing participation
by all parties.
ISSUE: Should the complainant,
respondent, and the BOE HP be
given an opportunity to address
the City Council during the
appeal proceedings?
2.78.090(E)
E. The City Council shall review the record of the hearing to determine whether the hearing panel committed a clear error or an abuse of discretion based upon the record. If no such finding is made by a majority of the City Council, then the City Council shall adopt the decision of the hearing panel as the findings of the City Council on appeal. If there is a finding by the City Council of a clear error or an abuse of discretion by the hearing panel, then that finding shall be clearly stated and the matter shall be referred back to the Board of Ethics for a de novo (new) re-hearing of the matter in light of the findings on appeal. T h ed en o v or e - h e a r i n gs h a l lb e conducted before the same hearing panel convened in accord with Riverside Municipal Code section 2.80.040(B)(3a-i), except that a pre- hearing conference shall not be required. The hearing shall be conducted in accord with the hearing procedures set forth in the Riverside Municipal Code Section 2.78.080.
On February 15, 2022, the City
Council approved the blue
insertions by introduction on an
ordinance not yet adopted.
On August 4, 2022, the Board of
Ethics recommended a
language change to state that
“the same hearing panel shall
hear the de novo hearing.”
ISSUE: Should City Council be the
body to oversee appeals?
W h om a k e st h ef i n a l
determination after a de novo
hearing appeal?
Appeal Procedures
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7 4. Sanctions
a. Who imposes sanction?
b. Possible referral to District Attorney?
Threshold Issues
RiversideCA.gov
8 RMC
SECTION RMC LANGUAGE ISSUE BOARD
OF ETHICS
CITY
COUNCIL
2.78.090(F)
If the City Council finds there is a violation of the Prohibited Conduct section of this chapter, then the City Council may determine sanctions in accordance with the enforcement and sanctions section of this chapter.
ISSUE: May the BOE recommend
sanctions in accordance with
2.80?
P o s s i b l er e f e r r a lt oD i s t r i c t
Attorney?
Sanctions
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9 5. Miscellaneous
a. Bias (disqualification based on Ward seat)
b. Who has power to seek outside counsel: BOE or Hearing Panel?
c. Role of staff in the process?
d. Is the process too lengthy and time restrictive?
e. Complaint procedures (Who can file? Define deemed
complete?)
f. Amendments to complaints
Miscellaneous Threshold Issues
RiversideCA.gov
10 RMC
SECTION RMC LANGUAGE ISSUE BOARD
OF ETHICS
CITY
COUNCIL
2.80.040(B)3(h)
3h. If a complaint concerns a City
Councilmember, any member of
the Board residing in that
Councilmember's Ward shall be
disqualified from participating on
the hearing panel;
If the complaint concerns a councilmember, any member of the board residing in that Councilmember's Ward shall be disqualified from participating on the hearing panel.
ISSUE: When the party(s) include all members of the City Council, then all BOE members are disqualified, and the complaint is automatically dismissed.
Rules and Procedures
The City Clerk handles the complaints' administerial duties, i.e., review for completeness, notify all parties of proceedings, schedule proceedings, draft the statement of findings, etc. The City Attorney serves as a resource to those persons covered by the Code to assist them in understanding and abiding by the Code's provisions and issue any subpoenas, if necessary.
ISSUE: Clearly identify and define staff's role in the complaint, pre-hearing conference, hearing, and appeal proceedings.
Miscellaneous
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11 RMC SECTION RMC LANGUAGE ISSUE BOARD
OF ETHICS
CITY
COUNCIL
2.78.070
(A,B,C,D,E)
A. Only alleged violations of the Prohibited Conduct section of this chapter shall be grounds for a complaint against any public official pursuant to this chapter.
B. Complaints shall be submitted on forms available from the City Clerk.
C. Complaints and all required information and tangible evidence shall be filed with the City Clerk.
D. Complaints shall include, but not be limited to.
E. Complaints shall be filed with the City Clerk within 180 calendar days of discovery of an alleged violation of this chapter, but in no event shall the complaint be filed later than three years from the date of the alleged violation.
Discovery is defined as when the complainant knew or
reasonably should have known of the alleged violation
through the exercise of reasonable diligence.
Complaints shall be filed with the City Clerk
within 180 calendar days of discovery of an
alleged violation of this chapter, but in no
event shall the complaint be filed later than
three years from the date of the alleged
violation.
ISSUE: Should the submission of complaints
be limited to Riverside residents or business
owners, excluding nonresidents?
INSERTION AFTER
2.78.070(E)
The complainant may be permitted to submit one revised
complaint to only add additional allegations of prohibited conduct. This updated complaint must be submitted to the City Clerk following the established policies and procedures within thirty (30) days of the original complaint being filed with the Clerk and within the 180 calendar days of discovery of an alleged violation of this chapter. The only amendment may be the addition of additional allegations of violations of prohibited conduct.
Board of Ethics recommends this insertion
related to amendments to complaints.
Miscellaneous
RiversideCA.gov
12 RMC SECTION RMC LANGUAGE ISSUE BOARD
OF ETHICS
CITY
COUNCIL
INSERTION AFTER
2.78.070 (F)
If an amended complaint is submitted to the City Clerk within the 30-day time frame, the City Clerk reviews the amended
complaint for completeness only. The time frames established in the RMC for actions by the City Clerk, Hearing Panel and Ethics Board will be reset using the date that the amended complaint has been accepted and determined to be complete
Board of Ethics recommends this insertion
related to amendments to complaints.
INSERTION AFTER
2.78.070 (F)
The acceptance of the amended complaint is not deemed to be a continuance
Board of Ethics recommends this insertion
related to amendments to complaints.
Miscellaneous
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13 RMC SECTION RMC LANGUAGE ISSUE BOARD
OF ETHICS
CITY
COUNCIL
2.78.040 (C)
Implementation
The City Attorney, or his or her designee, shall serve as a resource to those persons covered by this chapter to assist them in understanding and abiding by the provisions therein. Use of outside legal counsel in lieu of the City Attorney to advise the Board of Ethics and its hearing panels on specific matters shall be at the discretion of the Board of Ethics. If outside legal counsel is so desired, the City Attorney shall contract with the appropriate party(ies).
ISSUE: Who has the power to seek outside
counsel?
2.78.080(E)(7)
Hearing Procedures
7. If it is determined by the hearing panel that it is more likely than not that there may be a potential violation of the prohibited conduct section of this chapter has occurred, then the City Clerk shall set a hearing date on the complaint within 20 City business days of the pre-hearing conference.
The hearing date shall be within 45 City business days
following the pre-hearing conference.
ISSUE: Is a Statement of Findings necessary
for the pre-hearing conference only when
the hearing panel finds it is not likely a
violation occurred?
2.78.090 (I) Appeal
Procedures
No elected official who is either the complainant, or the subject of a complaint, filed pursuant to this chapter shall participate in the appeal of a decision of the hearing panel considering such complaint and must recuse himself or herself from participation.
During the 2020 annual review of the Code,
the City Council recommended change
“elected” to “public official.”
Miscellaneous
RiversideCA.gov
14 • What is the role of staff?
• Is the process too lengthy and time
restrictive?
Miscellaneous
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15 On September 27, 2022, the Committee concluded:
1. Pre-hearing conference is necessary
2. Involvement of attorneys is not necessary
3. More formality to settlement discussions
4. Board of Ethics should review complain t for elements of sections violated and have ability to ask questions
5. Both parties should have the option to speak at the pre-hearing conference
6. Separate pre-hearing and hearing procedures
Issues not addressed under Pre-hearing and Hearing are highlighted on the following slides.
Recap of Pre-hearing Conference
and Hearing Threshold Issues
RiversideCA.gov
16 1. Pre-hearing conference
a. Purpose
b. Attendance and participation of parties
c. Representation
d. Settlement facilitation
e. Subpoena power
Pre-hearing Conference Threshold Issues
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17 RMC
SECTION RMC LANGUAGE ISSUE BOARD
OF ETHICS
CITY
COUNCIL
2.78.080 (E)
E. The hearing panel of the Board of Ethics shall conduct a pre-hearing conference prior to a hearing date being set by the City Clerk. All parties are to attend the pre-hearing conference; however, the absence of any party at the pre-hearing conference shall not be grounds for a continuance and the pre-hearing conference shall proceed as if the absent party were present. The pre-hearing conference shall be conducted as follows:
1. The hearing panel shall review the complaint to determine if it complies with all of the following to establish jurisdiction of the Board of Ethics:
a. The complaint procedures section of this chapter have been followed;
b. The complaint is against a publ ic official set forth in the scope section of this chapter;
c. The complaint alleges a violation of one or more of the provisions of the prohibited conduct section of this chapter; and
d. The complaint does not restate allegations of violations that were the subject of a previous complaint.
The hearing panel of the Board of
Ethics shall conduct a pre-
hearing conference before a
hearing date is scheduled by the
City Clerk.
ISSUE: Is a pre-hearing
conference necessary?
Staff recommends the entire
Board of Ethics conduct the pre-
hearing conference during a
regular meeting without recusal
of members. If it is determined
that more likely than not a
violation occurred, the hearing
panel would be drawn at this
meeting.
2.78.080(B)(Q)
B. The pre-hearing conference and hearing on the merits are not formal judicial proceedings. The technical rules of evidence do not apply.
Q. Neither the complainant, nor the public official against whom a complaint is filed pursuant to this chapter, shall be represented at the hearing by an attorney. Although an attorney may be present and consulted at the hearing, the attorney shall not address the hearing panel or participate in any aspect of the hearing.
ISSUE: Should complainant and
respondents attorneys be
allowed to participate in the pre-
hearing conference, hearing,
and appeal proceedings?
Pre-hearing Conference
RiversideCA.gov
18 RMC
SECTION RMC LANGUAGE ISSUE BOARD
OF ETHICS
CITY
COUNCIL
2.78.080 (D)
D. No witnesses, documents, photographs, recordings or other tangible materials, other than those submitted with the complaint or reply, shall be introduced at the hearing or considered by the hearing panel. However, witnesses, documents, photographs, recordings and other tangible evidence may be introduced and considered upon a finding by a majority of the hearing panel that the discovery of such evidence came to the awareness of the proponent after the filing of the complaint or reply and that the proponent disclosed such information to the City Clerk as soon as practicable after becoming aware of its existence. Any witnesses, documents, photographs, recordings and other tangible evidence subpoenaed by the hearing panel shall also be introduced and considered.
The hearing panel of the Board of
Ethics shall conduct a pre-
hearing conference before a
hearing date is scheduled by the
City Clerk.
ISSUE: Who has subpoena power?
2.78.080(E)(3) 3. The hearing panel shall facilitate settlement discussions between the parties. ISSUE: Who facilitates a settlement?
2.78.080(E)(5)
5. The complainant shall verbally present to the hearing panel any and all evidence, both tangible and testimonial, that will be presented at the hearing to prove the allegations in the complaint.
ISSUE: What is the participation of
the public official subject to the
complaint?
Pre-hearing Conference
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19 RMC
SECTION RMC LANGUAGE ISSUE BOARD
OF ETHICS
CITY
COUNCIL
2.78.080(E)(8)
8. If it is determined by the hearing panel that the complainant has failed to show that it is more likely than not that there may be a potential violation of the prohibited conduct section of this chapter, the Chair of the hearing panel shall instruct the City Clerk to prepare a statement of findings for the hearing panel to adopt at the next regular meeting of the Board of Ethics.
Alternatively, the hearing panel may designate members of the hgearing panel to prepare the findings. If memers of the heasring panel prepare the findings, such findings shall be adopted at the next regular meeting of the Board of Ethics. This statement of findings shall be considered the final decision of the hearing panel and is immediately appealable to the City Council pursuant to the appeal procedures section of this chapter.
On February 15, 2022, the City
Council approved the blue
insertions by introduction on an
ordinance not yet adopted.
ISSUE: Is the intention for the pre-
hearing conference findings to
be appealable to the City
Council?
Pre-hearing Conference
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20 2. Hearing
a. Continuance (Who grants? Can a continuance be
granted for the pre-hearing conference?)
b. Who prepares Statement of Findings? When do they
get approved by the Board of Ethics?
c. Are rules too confusing for the public to understand? Hearing Threshold Issues
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21 RMC SECTION RMC LANGUAGE ISSUE BOARD
OF ETHICS
CITY
COUNCIL
2.78.070 (I)
I. The public official against whom the complaint is made shall file the following with the City Clerk no later than 20 calendar days prior to the date set for the hearing:
1. A written reply to the complaint;
2. Copies of any and all documents, photographs,
recordings or other tangible materials to be
introduced and considered at the hearing; and
3. The names, addresses, telephone numbers and email
addresses, if known, of any person the public official
i n t e n d st oc a l la saw i t n e s sa tt h eh e a r i n g .
A reply is not required for the pre-hearing
conference if participation of the public
official is not required or expected.
ISSUE: This provision follows 'pre-hearing'
procedures as stated in 2.78.070 but would
be more appropriately placed under
2.78.080 hearing procedures to avoid
ambiguity.
2.78.080(F)
F. Prior to the commencement of the hearing, either party may ask the City Clerk for a continuance of the hearing on either of the following grounds:
1. The unavailability of the party at the hearing due to illness or other reason acceptable to the City Clerk; or
2. The unavailability of a witness identified in the
complaint or reply.
The City Clerk grants a continuance.
ISSUE: Define “prior to the commencement”?
Should Board of Ethics approve
continuances? Can a continuance be
requested for a pre-hearing conference?
2.78.080(G)
Only one continuance of the hearing shall be granted by the City Clerk to each party. If a continuance is granted, the City Clerk shall give written notice to all parties of the new hearing date, time, and location within 20 City business days of the granting of the continuance.
Code does not specify a timeframe by
when the hearing must be rescheduled.
ISSUE: What is the deadline for the
rescheduled hearing?
Hearing
RiversideCA.gov
22 1. Add provision to allow both parties and Chair of Board of Ethics to participate in the appeals process
2. Automatic appeal when Hearing Panel finds no violation
3. Add language to explain legal recourse of parties during hearing proceedings
4. Define City Attorney’s role to Hearing Panel
5. Amend Section 2.78.090(i) to change “elected official” to “public official”
6. Add language to establish final authority of the City Council to have final resolve on appeals
7. City Council introduced Ordinance on February 15, 2022 - BOE recommends revision to Section 2.78.090.E that “the de novo hearing shall be conducted by the same hearing panel.
Recommendations from 2020 and 2021
Annual Review of the Code of Ethics
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