CITY OF SIMI VALLEY
MEMORANDUM
November 14, 2022
TO: City Council
FROM: Office of the City Manager
SUBJECT: DISCUSSION AND POSSIBLE ACTION RELATED TO A PLANNING COMMISSION MEMBER’S CONDUCT REGARDING THE CITY OF SIMI
VALLEY CODE OF ETHICS AND CONDUCT FOR ELECTED OFFICIALS
AND MEMBERS OF APPOINTED BOARDS, COMMISSIONS, AND
COMMITTEES
STAFF RECOMMENDATION
Staff recommends the City Council review the information in this staff report and take action as it deems appropriate.
BACKGROUND AND OVERVIEW
On December 12, 2016, the City Council appointed Allan C. Mann to the Simi Valley Planning Commission subsequent to the nomination of Mr. Mann by City Council Member Cavanaugh. Members of the Planning Commission are appointed by the Mayor upon approval of a majority vote of all the members of the Council. A member of the Planning Commission may be removed by a four-fifths (4/5ths) vote of all of the members of the Council. At the October 24, 2022, City Council meeting, City Council Member Luevanos and Mayor Mashburn requested the City Council look into possible violations of the City’s Code of Ethics and Conduct with respect to Mr. Mann’s real estate representation of a new housing development in Simi Valley.
FINDINGS AND ALTERNATIVES
At the December 12, 2016, meeting, the Mayor appointed Mr. Mann to the Planning Commission upon the approval of the City Council. This appointment is governed by the Simi Valley Municipal Code Section 2-3.402 as follows:
(a) Appointment.
(1) Each member of the Council, upon the commencement of that member's term of office, shall nominate for appointment or reappointment a member of the Planning Commission whose term of office concurrently expires with that of the nominating Councilmember. The nominee shall be interviewed by the Council at a duly-noticed public meeting and shall be appointed by the Mayor upon the approval of a majority vote of all the members of the Council.
AGENDA ITEM NO.
9B
2 (2) Each member of the Council shall have an opportunity to nominate one appointee to become a member of the Planning Commission. If the Mayor fails to appoint such nominee due to the failure of a majority of all the members of the Council to approve the appointment, the member of the Council whose nominee was rejected may nominate such other persons as necessary until the majority of the Council votes to approve such nominee for appointment and the Mayor appoints such nominee to the Planning Commission. The Mayor shall not refus e to appoint any nominee otherwise qualified to serve on the Planning Commission once the majority of all the members of the Council have voted the approval of such nomination.
Originally adopted on June 17, 2002, the City’s Code of Ethics and Conduct for Elected Officials and Members of Appointed Boards, Commissions, and Committees (Attachment A, Code of Ethics, page 6) applies as the name would imply to members of the Simi Valley Planning Commission.
On January 17, 2018, the Simi Valley Planning Commiss ion considered approval of Tentative Tract Map No. TT -5965 and P lanned Development Permit No. PD -S-1041 to build thirteen ( 13) homes, developed as Fountainwood Estates by JBR Development Company. At their consideration, the Planning Commission was considering making a recommendation to the City Council because the project necessitated the acquisition of a City-owned parcel (sloped 40 foot wide parcel totaling 0.79 acres) and only the City Council can approve the transfer of the property. In exchange for the City-owned parcel, the developer would construct certain public access improvements as part of the project.
By a 4-1 vote, the Planning Commission adopted a resolution recommending approval of the project to the City Council.
On May 14, 2018, the Cit y Council approved the Consent Calendar on a 5- 0 vote. This action adopted Resolution No. 2018-27, approving the sale of the vacant City-owned land to the developer, JBR Management Company, LLC, in exchange for the design, construction, and permanent maintenance of a bicycle and pedestrian pathway connecting Denton Avenue to Presidio Drive.
On December 19, 2018, the Planning Commission again considered approval of the Tentative Tract Map and Planned Development Permit for the Fountainwood Estates project, this time without the property -acquisition portion. This second action was required due to a staff error that resulted in the omission of a resolution for the City Council’s consideration approving the Tentative Tract Map and the Planned Development Permit. The Planning Commission’s action (4-0 vote; one vacancy existed on the Commission) on December 19, 2018, adopted Resolution No. SVPC 14-2018, approving the Tentative Tract Map and Planned Development Permit, actions within the purview of the Commission.
As noted above, Commissioner Mann has served on the Simi Valley Planning Commission since December 2016. Commissioner Mann participated in the discussion and voted in the affirmative on the January 17, 2018, and December 19, 2018, actions. 3 Commissioner Mann is the owner of Time Realty Property Management and is a real estate agent at Keller Williams Realty, both located in Simi Valley. On or about June 2022, Commissioner Mann was selected by the developer as the co-listing agent for the Fountainwood Estates project. In response to inquiries by the City Attorney, Commissioner Mann has indicated that he had no direct, indirect, personal or financial involvement with JBR Development Company and/or James Rasmussen (principal of JBR Development Company) and/or any other person associated or related to the Fountainwood Estates development when the actions were taken by the Planning Commission in January and December 2018.
It has been established, based on facts presently known to City staff, Commissioner Mann did not have a legal conflict of interest under the State’s Government Code, the California Political Reform Act , any conflict of interest or ethics regulations of the Fair Political Practices Commission, or common law at the time he partic ipated in the votes on the Fountainwood Estates project.
It has been alleged that Commissioner Mann may have violated the City’s Code of Ethics and Conduct. Specifically, the following portion of the Code of Ethics may apply:
3. Conduct of Members
“The professional and personal conduct of members must be above reproach and avoid even the appearance of impropriety…”
As an appointee, each person appointed to a City board, commission, or committee must commit to the Code of Ethics, agreeing to uphold the C ode of Ethics and conduct themselves by following the model of behavior noted in the Code.
The Code of Ethics provides that the Mayor, among others, has the responsibility to intervene when a member of a board, commission, or committee’s actions appear to be in violation of the Code of Ethics. Below is the Compliance and Enforcement section of the Code of Ethics:
18. Compliance and Enforcement
“The Simi Valley Code of Ethics and Conduct expresses standards of ethical conduct expected for members of the Simi Valley City Council, boards, commissions, and committees. Members themselves have the primary responsibility to assure that ethical standards are understood and met, and that the public can continue to have full confidence in the int egrity of government. The chairs of boards, commissions, and committees and the Mayor have the additional responsibility to intervene when members’ actions appear to be in violation of the Code of Ethics and Conduct are brought to their attention. The Cit y Council may impose sanctions on members whose conduct does not comply with the City’s ethical standards, such as reprimand, formal censure, loss of seniority or committee assignment. The City 4 Council also may act to remove members of boards, commissions, and committees from office.”
Accordingly, i n the event of a violation of the Code of Ethics: “ The City Council may impose sanctions on members whose conduct does not comply with the City’s ethical standards, such as reprimand, formal censure, loss of seniority or committee assignment.
The City Council also may act to remove members of boards, commissions, and committees from office.”
Pursuant to the SVMC Section 2-3.403, members of the Planning Commission may be removed by the City Council. Specifically:
“A member of the Planning Commission may be removed by a four-fifths (⅘) vote of all of the members of the Council.”
Therefore, should the City Council find that Commissioner Mann has violated the Code of Ethics and concluded that removal is an appropriate remedy , a super majority, i.e., a four-fifths (4/5ths) vote, of the City Council may remove him from the Planning Commission in accordance with SVMC Section 2 -3.405 and Section 18 of the Code of Ethics. However, because Planning Commissioners also serve at the pleasure of the City Council, pursuant to SVMC Section 2-3.403, removal would not need to be connected to an actual violation of the Code of Ethics and can be done by a 4/5 vote of the City Council.
Should the City Council decide to pursue a censure of the Commissioner by way of a simple majority, i.e., a three-fifths (3/5ths) vote, there are due process requirements that must first be met. For a censure action, it is advisable to:
• Draft and present a summary of charges for the member to be censured, and provide this in advance of a censure hearing. This could be drafted by a particular Council Member or subcommittee;
• Agendize a resolution or motion of censure discussion and hearing with at least the 72-hour Brown Act notice; and
• At the hearing, provide the subject m ember with an opportunity to present a rebuttal, which may include witnesses; however, no cross-examination is required.
Staff recommends the City Council provide an opportunity for Commissioner Mann under Public Statements to address the information in this report. It is further recommended the City Council review the information in this staff report and take action as it deems appropriate.
5 SUMMARY
On December 12, 2016, the City Council appointed Allan C. Mann to the Simi Valley Planning Commission subsequent to the nomination of Mr. Mann by City Council Member Cavanaugh. It has been alleged that Commissioner Mann may have violated the City’s Code of Ethics and Conduct. City Council Member Luevanos and Mayor Mashburn have requested the City look into possible violations of the City’s Code of Ethics with respect to Commissioner Mann’s business relationship with a developer constructing a 13 home project in Simi Valley.
____________________________________
Brian P. Gabler
City Manager
INDEX Page
Attachment A - Code of Ethics ......................................................... 6
City of Simi Valley Code of Ethics and Conduct
for Elected Officials and Members of
Appointed Boards, Commissions, and Committees
1 Adopted 9/9/19; Rev. 3/30/20
Statement of Purpose
The citizens and businesses of Simi Valley are entitled to have fair, ethical and accountable local government which has earned the public’s full confidence for integrity.
The City of Simi Valley’s strong desire to fulfill this mission therefore requires that:
• public officials, both elected and appointed, comply with both the letter and spirit of the laws and policies affecting the operations of government; • public officials be independent, impartial and fair in their judgment and actions; • public office be used for the public good, not for personal gain; and • public deliberations and processes be conducted openly, unless legally confidential, in an atmosphere of respect and civility.
To this end, the Simi Valley City Cou ncil has adopted this Code of Ethics and Conduct for elected officials and members of appointed boards, commissions, and committees to assure public confidence in the integrity of local government and its effective and fair operation.
1. Act in the Public Interest
Recognizing that stewardship of the public interest must be their primary concern, members will work for the common good of the people of Simi Valley and not for any private or personal interest, and they will assure fair and equal treatment of all persons, claims and transactions coming before the Simi Valley City Council, boards, commissions, and committees.
2. Comply with the Law
Members shall comply with the laws of the nation, the State of California, and the City of Simi Valley in the per formance of their public duties. These laws include, but are not limited to: the United States and California constitutions; laws pertaining to conflicts of interest, election campaigns, financial disclosures, employer responsibilities, and open processes of government; and City ordinances and policies.
3. Conduct of Members
The professional and personal conduct of members must be above reproach and avoid even the appearance of impropriety. Members shall refrain from abusive conduct, personal charges or v erbal attacks upon the character or motives of other members of Council, boards, commissions, and committees, the staff or public. 6 ATTACHMENT A
City of Simi Valley Code of Ethics and Conduct
for Elected Officials and Members of
Appointed Boards, Commissions, and Committees
2 Adopted 9/9/19; Rev. 3/30/20
4. Respect for Process
Members shall perform their duties in accordance with the processes and rules of order established by the City Council and boards, commissions, and committees governing the deliberation of public policy issues, meaningful involvement of the public, and implementation of policy decisions of the City Council by City staff.
5. Conduct of Public Meetings
Members shall prepare themselves for public issues; listen courteously and attentively to all public discussions before the body; and focus on the business at hand. They shall refrain from interrupting other speakers, making personal comments not germane t o the business of the body, or otherwise interfering with the orderly conduct of meetings.
6. Decisions Based on Merit
Members shall base their decisions on the merits and substance of the matter at hand.
7. Communication
Members shall publicly share substantive information that is relevant to a matter under consideration by the Council or boards, commissions, and committees which they may have received from sources outside the public decision-making process.
8. Conflict of Interest
In order to ass ure their independence and impartiality on behalf of the common good, members shall not use their official positions to influence government decisions in which they have a material financial interest or personal relationship which may give the appearance of a conflict of interest. In accordance with the law, members shall disclose investments, interests in real property, sources of income, and gifts; and they shall abstain from participating in deliberations and decision-making where conflicts may exist.
9. Gifts and Favors
Members shall comply with the requirements of the Political Reform Act relating to the acceptance and reporting of gifts.
7 City of Simi Valley Code of Ethics and Conduct
for Elected Officials and Members of
Appointed Boards, Commissions, and Committees
3 Adopted 9/9/19; Rev. 3/30/20
10. Confidential Information
Members shall respect the confidentiality of information concerning City property, personnel or proceedings of the City. They shall neither disclose confidential information without proper legal authorization, nor use such information to advance their pers onal interests.
11. Use of Public Resources
Members shall not use public resources not available to the public in general, such as City staff time, equipment, supplies or facilities, for private gain or personal purposes.
Members shall not utilize the City’s name or logo for the purpose of endorsing any political candidate or business.
12. Representation of Private Interests
In keeping with their role as stewards of the public interest, members of Council shall not appear on behalf of the private interests of third parties before the Council or any board, commission, committee, or proceeding of the City, nor shall members of boards, commissions, and committees appear before their own bodies or before the Council on behalf of the private interests of third parties on matters related to the areas of service of their bodies.
13. Advocacy
Members shall represent the official policies or positions of the City Council, board, commission, or committee to the best of their ability when designated as deleg ates for this purpose. When presenting their individual opinions and positions, members shall explicitly state they do not represent their body or the City of Simi Valley, nor will they allow the inference that they do.
14. Policy Role of Members
Members shall respect and adhere to the council -manager structure of Simi Valley city government as outlined in the City’s policies and procedures and follow Simi Valley Municipal Code Section 2-6.208 with respect to the City Manager’s relationship with the City Council. In this structure, the City Council determines the policies of the City with the advice, information and analysis provided by the public, boards, commissions, and committees and City staff. Except as provided by the City ordinance, members therefore shall not interfere with the administrative functions of the City or the professional duties of City staff; nor shall they impair the ability of staff to implement Council policy decisions.
8 City of Simi Valley Code of Ethics and Conduct
for Elected Officials and Members of
Appointed Boards, Commissions, and Committees
4 Adopted 9/9/19; Rev. 3/30/20
15. Independence of Boards, Commissions, and Committees
Because of the value of the independent advice of boards, commissions, and committees to the public decision-making process, members of Council shall refrain from using their position to influence unduly the deliberations or outcomes of board, commission, and committee proceedings.
16. Positive Work Place Environment
Members shall support the maintenance of a positive and constructive work place environment for City employees and for citizens and businesses dealing with the City.
Members shall recognize their special role in dealings with City employees and refrain from creating the perception of inappropriate direction to staff.
17. Implementation
As an expression of the standards of conduct for members expected by the City, the Simi Valley Code of Ethics and Conduct is intended to be self-enforcing. It therefore becomes most effective when members are thoroughly familiar with it and embrace its provisions.
For this reason, ethical standards shall be included in the regular orientations for candidates for City Council, applicants to boards, commissions, and committees and newly elected and appointed officials. Members entering office shall sign a statement affirming they have read and understood the City of Simi Valley Code of Ethics and Conduct. In a ddition, the Code of Ethics and Conduct shall be reviewed bi -annually by the City Council, boards, commissions, and committees, and the City Council shall consider recommendations from boards, commissions, and committees and update it as necessary in November of even-numbered years.
18. Compliance and Enforcement
The Simi Valley Code of Ethics and Conduct expresses standards of ethical conduct expected for members of the Simi Valley City Council, boards, commissions, and committees. Members themselves have the primary responsibility to assure that ethical standards are understood and met, and that the public can continue to have full confidence in the integrity of government. The chairs of boards, commissions, and committees and the Mayor have the additional responsibility to intervene when members’ actions appear to be in violation of the Code of Ethics and Conduct are brought to their attention. The City Council may impose sanctions on members whose conduct does not comply with the City’s ethical standards, such as reprimand, formal censure, loss of seniority or committee assignment. The City Council also may act to remove members of boards, commissions, and committees from office.
9 Term:
City of Simi Valley Code of Ethics and Conduct
for Elected Officials and Members of
Appointed Boards, Commissions, and Committees
5 Adopted 9/9/19; Rev. 3/30/20
STATEMENT OF COMMITMENT
As a member of the Simi Valley City Council or of a Simi Valley board, commission, or committee, I agree to uphold the Code of Ethics and Conduct for elected and appointed officials adopted by the City Council and conduct myself by the following model of behavior. I will:
• Recognize the worth of individual members and appreciate their individual talents, perspectives and contributions;
• Help create an atmosphere of respect and civility where individual members, City staff and the public are free to express their ideas and work to their full potential; • Conduct my personal and public affairs with honesty, integrity, fairness and respect for others;
• Respect the dignity and privacy of individuals and organizations; • Keep the common good as my highest purpose and focus on achieving constructive solutions for the public benefit;
• Avoid and discourage conduct which is divisive or harmful to the best interests of Simi Valley;
• Treat all people with whom I come in contact in the way I wish to be treated.
I affirm that I have read and that I understand, accept and support the City of Simi Valley Code of Ethics and Conduct.
_______________________________________________
Board, Commission, Committee
_______________________________________________
Position
_______________________________________________
(Print Name)
_______________________________________________
Signature Date
10