City Council
Report
City Council Meeting: July 9, 2024
Agenda Item: 14.A
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To: Mayor and City Council
From: Douglas Sloan, City Attorney, City Attorney's Office, Administration Subject: Legal Options for Investigations
Recommended Action
Staff recommends that the City Council:
1. Review options and recommendations concerning policies, investigations, and remedies for violations by Councilmembers and Council appointees for Brown Act and other laws or policies applicable to City employees; and
2. Consider approving one of the options or providing further direction.
Summary
I. Introduction. At the June 11, 2024, Council meeting, Council directed the City Attorney to return with options and recommendations concerning policies, investigations, and remedies for violations by Councilmembers and Council appointees for Brown Act and other laws or policies applicable to City employees. The following are some options for Council to consider in approving or providing further direction.
II. Resolution. Attached is a Resolution for Council consideration providing that all City officials - Councilmembers, Council appointees to City boards and commissions, Council Charter official appointees are subject to the same laws concerning breaches of confidentiality, harassment, discrimination, hostile work environment, retaliation, conflicts, gifts, and ethics laws and rules. It provides a process for reporting, investigating, and resolving complaints. However, further actions will be required to implement the Resolution.
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Options:
1. Approve the Resolution.
2. Approve the Resolution, with changes.
3. Direct further work on the Resolution, as specified.
4. Take no action on the Resolution or continue to a future meeting.
III. Investigations. The Resolution requires a means to investigate to be implemented. Ideally, investigations must be done timely by someone experienced and competent, familiar with federal, state, and local laws that apply, and with independence - not biased or subject to influence by politics, City personnel, or the public, much like a prosecutor.
Investigations are appropriate, even mandatory, on many levels, ranging from elected and appointed officials to employees accused of policy violations. Most investigations occur discretely and are never brought to the Council’s or public’s attention.
Over the last 24 months, 16 investigations have been referred to outside law firms to handle at a total cost of $226,546 in FY 23 and $232,142 in FY24 (to date.) HR also contracts for certain investigations to be performed by non-lawyers.
One option may include referrals to an independent investigator, most likely a law firm, on a Council approved basis. Typically, complex investigations may include research, obtaining and reviewing documents, interviews, and preparing reports, and can cost over $100,000 each and can take 6 months to complete. Hourly rates for attorney investigators the City has used range from $160 to $375 for associates and up to $495 for partners. To be effective, an annual budget of at least $400,000 total is estimated to be required to refer matters to outside counsel for the types of investigations that are contemplated in the Resolution.
A second option may be to create an independent investigator position as a City employee, an attorney. The investigator would work independently, with minimal interaction with other City officials and employees. The authority and responsibilities can 3 of 6
be established by resolution or ordinance, and the person would report directly to the City Attorney, but following the direction set forth by Council resolution. The total annual cost would likely be around $320,000. The time incurred could be charged to nongeneral fund departments for work done on their behalf, so the general fund may not need to bear the full cost. Since this is a full time position housed in City Hall, investigations can be completed far more quickly and efficiently than coordinating with outside counsel, not competing for time for other clients, and all but eliminating travel time for the investigator and/or the people interviewed. This has been done elsewhere with success.
In either scenario, City officials and the investigator need to be mindful of independence and potential conflicts.
Options:
1. Direct the engagement of an outside investigator for particular matters as specified by Council now, with funding of up to $150,000 each.
2. Direct the engagement of an outside investigator for matters as complaints may arise pursuant to the Resolution with funding to be specified by further action.
3. Direct the CAO to initiate the process to create an investigator position in house, and return for approval and funding; cost is estimated to be approximately $320,000 per year, with benefits.
4. Take no action now concerning investigations.
IV. Ethics Commission. An additional option is to create an Ethics Commission by ordinance and empower the Commission to coordinate with the independent investigator as a fact finding body with subpoena power, make policy recommendations to Council, impose administrative fines, and/or make remedial recommendations to Council and other City officials concerning censure, removal from office (board and commission members), or referrals to the District Attorney or other appropriate 4 of 6
authorities. The commissioners can be Council appointees for defined terms, lead by the independent investigator. This will take some time, but there are existing models in other jurisdictions that can be reviewed for guidance.
Options:
1. Direct the City Attorney and City Manager to return with an ordinance for Council consideration to create an ethics commission.
2. Direct the City Attorney and City Manager to survey other cities with ethics commissions and return to Council with a discussion of detailed options.
3. Take no action now concerning an ethics commission.
V. Penalties and Remedies. An additional component to implement the policy is to provide for penalties and remedies for violations. It may be proper also to prohibit making false claims or providing false information in connection with an investigation.
There is some state law preemption for certain violations, but otherwise the City may consider providing by ordinance penalties and remedies; however, some options, as they may affect elected officials, may be required to be imposed by Charter amendment approved by the voters. Here are some options:
1. Censure - the Council could approve a censure resolution disapproving of certain conduct.
2. Removal from office - Council could vote (5 votes required by the Charter) to remove from office for violations by members of Council appointed boards and commissions.
3. Administrative citations with fines for various levels of violations.
4. Criminal penalties - violations could be punished by infraction or misdemeanor fines and/or confinement; these would need to be referred to the District Attorney or another agency if an inherent conflict of interest exists in the City Attorney’s Office.
5. Following investigation and finding a violation occurred, referrals to the District Attorney, FPPC, State Attorney General, or other agencies for criminal prosecution, other penalties, or civil action.
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6. Charter amendment - may allow for elected officials being removed from office, excluded from closed session, not being provided confidential materials, etc., following a determination that they have committed egregious or repeated violations.
Options:
1. Direct the City Attorney to return to Council with an ordinance providing for censure, administrative citations, and/or criminal penalties for violations as specified in the Resolution.
2. Direct the City Attorney to return with a potential options for a Charter amendment to be approved by the voters concerning remedies and penalties for Councilmember violations, understanding it will not be on the 2024 ballot.
3. Take no action now concerning penalties and remedies.
VI. “Gratuities”. In Snyder v. United States, the U.S. Supreme Court recently decided that certain “gratuities” may not constitute bribery. While both California state law and Santa Monica local law (for example, the “Oaks Initiative,”) address gifts to government officials, Council may direct tightening or clarifying local provisions in light of Snyder, and potentially prohibit all gratuities to Santa Monica elected and appointed officials.
Options:
1. Direct the City Attorney and City Manager to return with an ordinance for Council consideration to prohibit all gratuities to elected and Council appointed officials.
2. Direct the City Attorney and City Manager to survey other cities concerning gratuities and return to Council with a discussion of options.
3. Take no action now concerning gratuities.
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Prepared By: Douglas Sloan, City Attorney
Approved Forwarded to Council
Attachments:
A. Resolution re Conduct Standards 070924