City of Sacramento
Personnel and Public Employees Committee Report
915 I Street Sacramento, CA 95814
www.cityofsacramento.org
File ID: 2024-01012 5/14/2024 Discussion Item 5.
Consider Adoption of 2018 Sacramento Ethics Commission Recommendations File ID: 2024-01012
Location: Citywide
Recommendation: Committee to review and provide direction regarding 2018 Sacramento Ethics Commission recommendations, and take one of the following actions:
1) Pass a Motion directing the appropriate council appointive officer to continue work on the recommendation(s) and bring the matter back to the committee for review and consideration; 2) Pass a Motion directing the appropriate council appointive officer to continue work on the recommendation(s) committee members and forwarding the item to the city council for consideration without further review by the committee;
3) Pass a Motion sending the matter back to the sponsoring councilmember for additional information and/or research; or
4) Pass a Motion declining the recommendations.
Contact: Mindy Cuppy, City Clerk, (916) 808-5442, Office of the City Clerk; Gary P. Lindsey, Jr., Senior Deputy City Attorney, (916) 808-5346, [email protected], Office of the City Attorney
Presenter: Mindy Cuppy, City Clerk, (916) 808-5442, Office of the City Clerk Attachments:
1-Description/Analysis
2-Councilmember Proposal 2023-014
3-Policy and Financial Implications to 2018 Sacramento Ethics Commission Recommendations Description/Analysis
Issue Detail: On September 19, 2023 the Sacramento Ethics Commission submitted its annual report and recommendations to the Personnel and Public Employees (P&PE) Committee. At that meeting, the committee passed a motion to forward the annual report to the city council for consideration.
On September 21, 2023 Councilmember Valenzuela submitted a Councilmember Proposal Request
File ID: 2024-01012 5/14/2024 Discussion Item 5.
to consider adoption of 2018 Sacramento Ethics Commission recommendations. Per Council Rules of Procedure, Chapter 12, Mayor Steinberg reviewed the request and assigned it to the P&PE Committee to review.
On October 17, 2023 the P&PE reviewed the proposal and passed a Motion directing the appropriate council appointive officer to commence work on the proposal and bring it back to the committee for review and consideration.
This report is to provide an update on policy and financial implications regarding each recommendation.
Policy Considerations: The Commission’s recommendations may require Council action and, in some instances, a vote of the electorate.
Economic Impacts: Not applicable.
Environmental Considerations:
California Environmental Quality Act (CEQA): This action is not a project subject to CEQA because it involves only general policy and procedure making and does not have the potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. (CEQA Guidelines, §§ 15002(d), 15378(b)(2), 15061(b)(3)).
Sustainability: Not applicable.
Commission/Committee Action: The Sacramento Ethics Commission proposed the recommendations in question during their 2022 annual report.
Rationale for Recommendation: The Commission made its annual report to the Council and made recommendations regarding subpoena power; hearing officer; independence and staffing; and education, training, and policy. This report outlines the next steps in addressing each of these recommendations.
Financial Considerations: Not applicable.
Local Business Enterprise (LBE): Not applicable.
Background: During its 2018 annual report to the City Council, the Sacramento Ethics Commission made four primary recommendations: subpoena power; hearing officer; independence and staffing; and education, training, and policy. Staff subsequently presented to the commission on July 22, 2019
File ID: 2024-01012 5/14/2024 Discussion Item 5.
an update on actions required to enact their recommendations.
During the Commission’s 2022 annual report to the City Council, they re-submitted the 2018 recommendations.
2023-014
Councilmember Proposal Request Submission Page 1 of 4
Form Rev. 03/13/2023
COUNCILMEMBER PROPOSAL REQUEST SUBMISSION
Process as outlined in the Council Rules of Procedure, Chapter 12.
Submission Date: September 21, 2023
SUBJECT (brief summary): Consider Adoption of 2018 Sacramento Ethics Commission Recommendations
Councilmember Sponsor: Katie Valenzuela
Assigned Council Staff Member: Zach Freels, Chief of Staff
Proposal Summary/Recommendation (Provide a brief description of the proposal):
The following recommendations were included in the Commission’s 2018 annual report to the City Council. The Commission asked that these recommendations be presented to the City Council for consideration. Below is the text from the 2018 annual report.
As part of the process to develop procedures for implementing chapter 2.112, the Commissioners spent significant time reviewing procedures and best practices of ethics commissions in the following cities: City and County of San Francisco, City of Los Angeles, City of San Diego, City of Oakland, City of San Jose, and City of Riverside. Based on this review, the Commission offers the following recommendations:
Independence & Staffing
Two ways in which Commission differs from most other ethics commissions statewide are (1) budget source and guaranteed levels of funding and (2) the reporting structure of staff.
Most commissions are created by city charter and, as such, are independent of the city council and have an independent budget. The benefit of an independent commission that draws its power from a city charter is that it is not beholden for funding or authority to the individuals who are subject to its jurisdiction. The Commission suggests that in the future the City Council consider amending the City Charter to establish an independent Ethics Commission with a guaranteed budget and authority derived from the City Charter, not the City Code.
Second, most California ethics commissions have adopted a staffing structure that is also independent. Staff report to the commissions themselves, not to officers whose positions are subject to commission oversight. Currently, the Commission has a single staff member—the Administrator—and he reports directly to the City Clerk, who is subject to the Commission’s regulation. Since the Administrator makes an initial determination of jurisdiction, and possibly an initial referral to an independent evaluator (whose contract the City Clerk awards), there is
2023-014
Councilmember Proposal Request Submission Page 2 of 4
Form Rev. 03/13/2023
the potential in this reporting structure for conflicts of interest to arise. The Commission recommends that this reporting structure be reconsidered and that the Administrator should report directly to the Commission.
Subpoena Power
For the Commission to fulfill its duties as an investigative and enforcement body, it needs the ability to compel testimony and the production of documents related to a complaint. Currently, the City Charter only provides the City Council with subpoena power (City Charter § 34). The Commission would like the City Council to consider a process to grant the Commission subpoena authority, either as a conduit of the City Council or through amendment of the City Charter. The Commission understands that a Charter amendment would require voter approval and so suggests that the City Council consider an interim measure. One suggestion would be an ordinance allowing for the routine delegation of subpoena power when the Commission is sitting as an administrative-hearing adjudicator. The adjudicative function would be the primary role in which the Commission would need authority to compel a witness’s presence or testimony or the production of other evidence.
Hearing Officer
Because the commission is comprised of voluntary Commissioners, and in the course of the commission’s activities may have matters that require more lengthy administrative hearings, the commission asks the City Council to consider amendments to City Code chapter 2.112 to allow the Commission to authorize the use of an administrative hearing officer to conduct administrative hearings. The Commission would continue to be the final decision maker in all complaints brought before the commission. The ability to bring in a hearing officer would allow for flexibility in situations where it appears that a hearing will either be long, politically sensitive (including situations where one or more Commissioners may have conflicts of interest) or require expertise that the Commission does not have.
Education, Training and Policy
The ability for the Commission to guide activities related to ongoing education, training, and compliance of governmental ethics laws in Sacramento would promote the work of the Office of Ethics and Compliance. City Code chapter 2.112 is silent on the Commission’s promoting education and training. Although the Commission believes that education, training, and policy development fall within the spirit of the chapter 2.112, the Commission asks the City Council to add language to City Code § 2.112.030 (powers and duties) that expressly designates these activities as within the Commission’s purview.
Additionally, numerous commissions statewide engage in policy activities to ensure that their jurisdictions remain leaders on governmental ethics and to provide innovative solutions to complex ethical issues. The Commission believes that these activities are consistent with City Code § 2.112. The Commission asks the City Council to add language to City Code § 2.112 that would expressly encourage the Commission to prioritize engagement in policy activities related to government ethics.
2023-014
Councilmember Proposal Request Submission Page 3 of 4
Form Rev. 03/13/2023
Rational for Recommendation (Identify the issue(s) that this proposal will address):
This proposal will allow the Sacramento Ethics Commission to perform their duties in a similar manner to similar commissions in other cities. This will improve public trust in City government by improving transparency and accountability in operations and among staff.
Applicable Council Priority Goal: Transparency & Accountability
Recommended Priority Level:
☐ 0-30 days
☒ 30-60 days
☐ Greater than 60 days
City Council Committee Review Recommended: given this was already heard at P&PE and the chair opted not to include the 2018 recommendations for consideration, I request this be sent to the full City Council and not to P&PE first.
☐ Budget and Audit Committee (B&A)
☐ Law and Legislation Committee (L&L)
☒ Personnel and Public Employees Committee (P&PE)
☐ Racial Equity Committee (RE)
☐ City Board, Commission, or Committee Review Recommended (list advisory body(ies)):
Do any of the following Council Policy Considerations apply? If so, give a brief explanation:
☐ DEI:
☐ Climate Action:
Financial Considerations: unknown staff costs
Attachments to Support Summary/Recommendation:
(Please attach and explain council staff research that has been done on this proposal; Include all information received from outside careholders, drafts or examples compiled).
1. 2023-014
Councilmember Proposal Request Submission Page 4 of 4
Form Rev. 03/13/2023
Mayor’s Review:
Date Reviewed: 10/02/2023
Committee Review Required:
☐ Budget and Audit Committee (B&A)
☐ Law and Legislation Committee (L&L)
☒ Personnel and Public Employees Committee (P&PE)
☐ Racial Equity Committee
☐ City Board, Commission, or Committee Review (list advisory body(ies)):
Committee Review Exception Applies:
☐ Urgent matter that requires quick council action.
☐ A matter related to a pending council matter.
☐ A matter that on its face falls fully outside the jurisdiction of the City. ☐ A matter within the City Manager’s executive function that does not need council authorization.
Department(s) Collaboration Needed:
Mayor’s Additional Direction:
City Council Standing Committee Scheduling:
Transmitted for addition to the following agenda(s) for committee review to initiate staff work on the proposal:
Standing Committee Tentative Agenda Date
Budget and Audit Committee (B&A)
Law and Legislation Committee (L&L)
Personnel and Public Employees Committee (P&PE) 10/17/23 Racial Equity Committee (RE)
Proposal will also be made part of the Councilmember Proposal Tracking Log.
City Clerk’s Additional Comments:
Policy and Financial Implications to 2018 Sacramento Ethics Commission Recommendations
Subpoena Power
Under the City Charter, only the City Council or a committee composed of Council Members may subpoena witnesses (City Charter § 34) so one of the following actions would have to occur for the Commission to be granted subpoena power:
1. Council Action: At the Commission’s request, the City Council could issue subpoenas ordering witnesses to appear before the Commission and testify or produce documents.
2. Council Action: The City Council might, by amending City Code chapter 2.112, be able to delegate the subpoena power to the Commission when the Commission acts on a complaint. The amendment would resemble City Code §
1.28.010.D.4.e.viii(D), which reads as follows:
Subpoenas. The hearing examiner shall have the authority to issue subpoenas compelling witnesses to appear and provide testimony or subpoena duces tecum compelling witnesses to produce documents. The hearing examiner shall issue a subpoena only upon a showing of reasonable necessity by the requesting party. Failure of either party to comply with any subpoena may be considered by the hearing examiner in making his/her decision regarding the imposition of administrative penalties.
Further research would be required to confirm that the City Council may delegate the subpoena power in this way.
3. Charter Amendment: The electorate could approve an amendment of the City Charter that expressly authorizes the City Council to delegate the subpoena power to the Commission or directly grants the subpoena power to the Commission.
Budget implications depend on committee recommendation. The cost for a measure on the November 2024 ballot (with candidates) is estimated to be $31,000. If the election is still consolidated with the county but there were no other contests, the cost could be significantly higher.
Hearing Officer
The Commission requested the ability to use an administrative-law judge (ALJ) or hearing officer when potentially lengthy or complex administrative hearings make timely disposition of a complaint difficult. Specifically, the Commission requested the ability to use an ALJ or hearing officer to take the matter under submission, and the Commission would then conduct a streamlined hearing to adjudicate a complaint. Council action to amend City Code chapter 2.112 to allow for the use of an ALJ or hearing officer would be needed. Budget allocation, also by Council action, would also be needed so that funding is available should the Commission choose to use an ALJ or hearing officer.
Budget implications depend on committee recommendation. In 2023 the City entered into a contract for a bid protest hearing officer at the rate of $230 per hour.
Independence and Staffing
The Commission requested independent, dedicated staffing and a guaranteed budget, which requires Council action and possibly a vote of the electorate. Council could take action during the budget cycle to modify the City Clerk’s budget to add additional funding and staff. If the Council wishes to guarantee the Commission’s independence and funding within the City Charter, a vote of the electorate is required.
Of California’s eight largest cities, including Sacramento, all but one (Fresno) have an ethics commission, and four of these seven commissions are solely independent departments with budgeted staffing and authority to conduct education, policy, and enforcement work.
Sacramento and San Jose ethics commissions are organized and staffed within the City Clerk’s office’s and assisted by a contracted independent evaluator. Long Beach ethics commission is staffed by one position which is part of the City Manager’s budget.
Budget implications depend on committee recommendation. Below are estimated budget allocations for independent commissions as of December 2023:
San Francisco $6.5 Million
Los Angeles $5.4 Million
Oakland $1.8 Million
San Diego $1.5 Million
Education, Training, and Policy
Input and involvement regarding education, training, and policy development regarding the code sections under the Commission’s jurisdiction are critical to the success of the City’s ethics program. Although City Code chapter 2.112 is silent regarding the Commission’s role in education, training, and policy, the City Clerk and the Commission agree that Commission guidance and support is critical to the development and execution of training. The Office of the City Clerk collaborates with the Commission on all training processes and materials and is appreciative of their input.
Budget implications depend on committee recommendation. It is current practice of the City Clerk to include the commission in education and training development.