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HomeMy WebLinkAbout4.02 AlamedaCtyGndJury .. CITY CLERK File # D~lm[QJ-[8][Q] . AGENDA STATEMENT CITY COUNCIL MEETING DATE: August 18,1998 SUBJECT: Comments to 1997-98 County of Alameda Grand Jury Recommendations 98-35 & 98-36 Report Prepared by Elizabeth H. Silver, City Attorney EXHIBITS ATTACHED: A) B) Letters from Neil B. Goodhue, Grand Jury Foreman dated June 25, and July 1, 1998 Response letter to Honorable Philip V. Sarkisian, Presiding Judge of the Superior Court RECOMMENDATION: aY Authorize Mayor to execute letter and direct Staff to send letter to , Judge SarkiSIan WIth copy to Mr. Goodhue FINANCIAL STATEMENT: None . DESCRIPTION: The Grand Jury is made up of 19 members of the community who serve as volunteers and who review governmental operations. The 1997-98 Alameda County Grand Jury recently issued its Final Report. The Government Committee of the Grand Jury made recommendations related to The Brown Act and Code of Ethics _ Conflict ofInterest Policy. In accordance with the California Penal Code, any public agency subject to its reviewing authority must respond and comment no later than 90 days after the Grand Jury submits its Final Report. Staff recommends that the Council authorize the Mayor to execute the attached letter and direct Staff to send it to Presiding Judge Sarkisian, with a copy to Neil Goodhue, Grand Jury Foreman. . ++----..---..-...-..--..--.-....-------...-..----..-..-..-..-..-....-----.-....-..--..-...-..-..-...--.-..-...-----..-----.-..-..-...-..-...-..-...----...--.-----..-..--..-..-...-..--.-..-..-..-..-..-..-..-..-..-++-..--..- COPIES TO: ITEM NO. A2 K= /G/cc-mtgs/8-18-98/as-gj.doc County of Alameda --- \." C - --'-~ Co RECEfVffi~~ JU!~ 2 G -;g;-~ CiTY lH- UUI:)Lli'J ~:t~ . GRAND JURY June 25, 1998 Dublin City Council 6500 Dublin Blvd. Dublin, CA 94566 Dear Counci I Members: Enclosed please find the 1997-1998 Alameda County Grand Jury Final Report relating to investigations regarding the Brown Act and the Alameda County Code of Ethics/Conflict of Interest Policy. Section 933.05(f) of the California Penal Code states as follows: . A grand jury shall provide to the affected agency a copy of the portion of the grand jury report relating to that person or entity two working days prior to its public release and after the approval of the presiding judge. No officer, agency, department, or governing body of a public agency shall disclose any contents of the report prior to the pub/~c release of the final report. Leg.H. 1996 ch. 1170, 1997 ch. 443. In accordance with the above Penal Code section, we are providing you with a copy of this report. This report is expected to be released to the public on or about July 1, 1998. Sincerely, NEIL B. GOODHUE, Foreman 1997-1998 Alameda County Grand Jury by: ~-&tmK. Cassie Barher, Staff Assistant Alameda County Grand Jury NBG:cab enclosure . 1401 Lakeside Drive, Suite 1104, Oakland, CA 94612 (510) 272-6259 E_XlIIBIT A GOVERNMENT COMMITTEE . During the 1997-1998 fiscal year the Government Committee of the Grand Jury received over thirty-five complaints from citizens. Most of these came in the form of letters complai'ning about governmental agencies that have not performed at an optimum level. These complaints were addressed by making phone calls to or interviewing employees of various governmental agencies, referring complainants to other providers of relevant services, or by providing the names and phone numbers of other agencies that offer free legal services. Some grievances were not within the jurisdiction of the Grand Jury. IHE BROWN ACT HISTORY: As with previous Grand Juries; this Grand Jury received several complaints that local public bodies have not always complied with either the letter and/or spirit . of the Ralph M. Brown Act -- the State public open meeting law. The Brown Act requires the governing bodies of local agencies to hold their meetings in public, except under specific limited circumstances where closed sessions are authorized. Our investigation revealed that since the Act's adoption, no public official in' Alameda County has ever been prosecuted criminally for a violation of the Brown Act. This fact may have led governing, boards (elected or appointed) within Alameda County to de-emphasize the importance of the Brown Act. Because members of the affected governing boards change frequently, and because there are periodic revisions to the Brown Act, this year's Grand Jury . 41 . recommends that the legal staffs of the governing agencies within Alameda County . . ' periodically review the mandates of the Brown Act. Accordingly, we restate the recommendations of past Grand Juries: that all local elected or appointed governing bodies and political subdivisions of the State, operating in whole or in part within Alameda County, hold a~nual workshops to familiarize members and staff with the contents of the Act. . . We encourage all such governing bodies and commissions and political subdivisions of the State to communicate fully with the public, to allow open comment as prescribed by law, and to anSwer the questions and concerns of the public in a timely fashion. Such adherence to the law will avoid the perception of secrecy and/or concealment which too often permeates the public's mind about how its government goes about conducting the people's business. In addition to alleged violations of the Brown Act, another concern was brought to the attention of this year's Grand Jury regarding the opportunity of governing boards to discuss non-agenda items during closed or executive sessions. Only a few topics specifically authorized by the Act are appropriate for discussion behind closed doors, and such closed sessions should strictly adhere to the 'agendized subjects. The ~rown Act requires that before the governing body adjourns to closed session~ it must announce in public session the item or items to be considered. The Grand Jury acknowledges that frank an,d open discussion is necessary regarding litigation (pending or irt:tpending), liability claims, threat to public facilities, and certain personnel and collective bargaining matters. Our concer'n has to do with the absence of any available record, should the occasion arise, to establish that ~ legally sanctioned matters were in fact discussed. , 42 RECOMMENDATION 98-35: That all executive or closed session meetings of all elected or appointed commissions, boards, councils, advisory bodies and political subdivisions of the State be audio tape recorded Such audio tape records shall remain confidential and privileged pending finding by the presiding judge of the Superior Court who, after listening to tapes, in camera, determines that non-agendized items were discussed in the closed session. Such findings could subsequently be found to be Brown Act violations. . c During the year, several cases of apparent conflict of interest were brought to the attention of the Grand Jury. One complaint involved the hiring of a city official by a firm who had been negotiating with the same city official when he worked for the city. A second case arose when a local politician, who now has been elected as a State . representative, repeatedly repr.esented local clients before a local governing entity. In doing research to determine if any local jurisdictions had any laws forbidding this type of action, the Grand Jury discovered that most local governmental agencies had no such laws but that the federal government did. The federal laws prohibit most federal employees from working for or representing a private company's interest that . . did business with the governmental agency while the federal employee worked for that agency. The Grand Jury views all of these situations as at least giving the appearance of a conflict of interest, and it therefore recommends that all local governmental agencies adopt legislation that would put a stop to those types of situations discussed in this report. 43 . . . , . .' . . RECOMMENDATION 98-36: That all governmental agencies operating within Alameda County adopt a conflict of interest code. This code would forbid any employee who leaves the agency lor any reason from representing any client during any negotiations or hearing with his/her former governmental agency within one year, and also forbid any person from returning to the agency as an" employee or consultant within one year. Such prohibition as to returning to the agency's employment within one year shall be stipulated within the agency's conditions of employment. RESPONSES REQUIRED: Board of Supervisors Recommendations 98-35 and 98-36 County Administrator Recommendations 98-35 and 98-36 All Governmental Agencies Within Alameda County: All City CouncIls Recommendations 98-35 and 98-36 All Mayors Recommendations 98-35 and 98-36 All School Boards Recommendations 98-35 and 98-36 BAR T Recommendations 98-35 and 98-36 AC TRANSIT Recommendations 98-35 and 98-36 EBM UD Recommendations 98-35 and 98-36 Board of Education Recommendations 98-35 and 98-36 EB Regional Park Recommendations 98-35 and 98-36 44 County of Alameda RECE\VEO j\JL 1 r: 199B Cn'i ur UUBLlN . GRAND JURY July I, 1998 Dublin City Council 6500 Dublin Bv Dublin, CA 94566 Dear Council Members: Enclosed please find the 1997-1998 Alameda County Grand Jury Final Report. Under California Penal Code sections 933 and 933.05 (enclosed), no later than 90 days after the Grand Jury submits a final report on the operations of any public agency subject to its reviewing authority, the aovernina body" of the public agency ~ to the jl['p.~iciing jud~ of the superior court on the findings and . recommendations pertaining to matters under the control of the governing body. Additionally, one copy shall be placed on file with the applicable grand jury final report by, and in control of the currently impaneled grand jury. Please respond to Recommendations 98-35 and 98-36. We look forward to your response before October I, 1998 and appreciate your time and consideration. NEIL B. GOODHUE, Foreman 1997-1998 Alameda County Grand Jury NBG:cab enclosures . 1401 Lakeside Drive, Suite 1104, Oakland, CA 94612 (510) 272-6259 . . . ~933. Comments and Reports on Grand Jury Recommendations. (a) [1] Each grand jury [2] shall submit to the presiding judge of the superior court a final report of its findings and recommendations that pertain to.county government matters [3] during the fiscal or calendar year. Final reports on any appropriate subject may be submitted to the _ presiding judge of the superior court at any time during , the term of service of a grand jury. A final report may be submitted for comment to responsible officers, agen- cies, or departments. including the county board of super- visors, when applicable, upon finding of the presiding judge that the report is in compliance with this title. One copy of each report found to be in compliance with this title shaH be.. placed on file with the county clerk and remain on file in the office of the county clerk. For 45 days after the end of the term, the foreperson and his or her designees shall, upon reasonable notice, be available to clarify the recommendations of the report. (b) [4] No later than 90 days after the grand jury submits a final report on the operations of any public agency subject to its reviewing authority, the governing body of the public agency shall comment to the presiding judge of the superior court on the findings and recommen- dations pertaining to matters under the control of the governing body, and every [5] elected county officer or agency head for which the grand jury has responsibility pursuant to Section 914.1 shall comment within 60 days . to the presiding judge of the superior court, with an information copy sent to the board of supervisors, on the findings and recommendations pertaining to matters under the control of that county officer or agency head and any agency or agencies which that officer or agency head su- pervises or 'controls, In any city and county. the mayor shall also comment on the findings and recommendations. All [6] of these comments and reports shall forthwith be submitted to the presiding judge of the superior court who impaneled the grand jury. A copy of all responses to grand jury reports shall be placed on file with the clerk of the public agency and the office of the county clerk, or the mayor when applicable, and shall remain on file in those offices. One copy shall be placed on file with the applica- ble grand jury final report by, and in the control of the currently impaneled grand jury, where it shall be main- tained for a minimum of five years. (c) As used in this section "agency" includes a department. Leg.H. 1961 ch. 1284, 1963 ch. 674, 1974 chs. 393, 1396, 1977 chs. 107, 187, 1980 ch. 543, 1981 ch. 203,1982 ch. 1408 ~5. 1985 ch. 221 ~1. effective July 12, 1985, 1987 ch. 690 ~1, 1988 ch. 1297, 1997 ch. 443, ~933. 1997 Deletes. [I] No later than the end of each fiscal or calendar year of a county, [2] impaneled during thlLl fiscal or calendar year [3] other than fiscal matters [4] No later than the end of each fiscal or calendar year. each grand jury impaneled during that fiscal or calendar yeM shall submit to the presiding judge of the superior court a final report of its findings and recom- mendations that pertain to fisc:li matters of county govcrnment during the fiscal or calendar yeM of the county. (c) [5] elective [6] such Cross-References Admissible evidence. pen:li Code ~939.6. "Grand jury" defined. Penal Code ~888. Grand jury report to be based only on own investigation. Penal Code ~939.9. S933.05. Response to Grand Jury Recommendations-Content Requirements; Personal Appearance by Responding Party; Grand Jury Report to Affected Agency. (a) For purposes of subdivision [1] (b) of Section 933. as to each grand jury finding, the responding person or entity shall indicate one of the following: (1) The respondent agrees with the finding. (2) The respondent disagrees wholly or panially with the finding, in which case the response shall specify the portion of the finding that is disputed and shall include an explanation of the reasons therefor. (b) For purposes of subdivision [2] (b) of Section 933, as to each grand jury recommendation, the responding person or entity shall repon one of the following actions: (1) The recommendation has been implemented. with a summary regarding the implemented action. (2) The recommendation has not yet been imple- mented. but will be implemented in the future, with a timeframe for implementation. (3) The recommendation requires funher analysis. with an explanation and the scope and parameters of an analysis or study,' and a timeframe for the matter to be prepared for discussion by the officer or [3] head of the agency or depanment being investigated or reviewed, including the governing body of the public agency when applicable. This timeframe shall not exceed six months from the date of publication of the grand jury report. (4) The recommendation will not be implemented because it is not warranted or is not reasonable, with an explanation therefor. (c) However, if a finding or recommendation of the grand jury addresses budgetary or personnel matters of a county agency or depanment headed by an elected officer, both the agency or depanment head and the board of supervisors shall respond if requested by the grand jury, but the response of the board of supervisors shall address only those budgetary or personnel matters over which it has some decisionmaking authority. The response of the elected agency or department head shall address all aspects of the findings or recommendations affecting his or her agency or depanment. (d) A grand jury may request a subject person or entity to come before the grand jury for the purpose of reading and discussing the findings of the grand jury repon that relates to that person or entity in order to verify the accuracy of the findings prior to their release. (e) During an investigation, the grand jury shall meet with the subject of that investigation regarding the investigation, unless the court, either on its own deter- mination or upon request of the fore person of the grand jury, determines that such a meeting would be detrimental. (0 A grand jury shall provide to the affected agency a copy of the portion of the grand jury report relating to that person or entity two working days prior to its public release and after the approval ofthe [4] presiding judge. No officer, agency, department, or governing body of a public agency shall disclose any contents of the report prior to the public release of the final report. Leg.H. 1996 ch. 1170, 1997 ch. 443. , Of D'j' ~ ~~ ~~,<~ tf'@I~'~~) CITY OF DUBLIN -~\~ PD. 60' 2340. Dub"". Calilomia 94568 '\{'1[[JO'9-.'\' " . City Offices, 100 Civic Plaza, Dublin, California 9456. August 19, 1998. Honorable Philip V. Sarkisian Presiding Judge of the Superior Court County of Alameda 1225 Fallon Street, Department One Oakland, CA 94612 RE: Comments of 1997-98 County Grand Jury Recommendations 98-35 & 98-36 Dear Judge Sarkisian: Thank you for the opportunity to respond to the Grand Jury Recommendations regarding the Brown Act and Conflicts of Interest issues. The City of Dublin welcomes the Grand Jury's work. The Report will assist Dublin in considering ways to make City government more responsive and effective. The City is conscious, however, about creating additional burdens on cities in Alameda County that do not apply to cities in other counties. As discussed below, the issues raised by the Grand Jury are serious public issues that should be addressed on a statewide level, not just locally. . Recommendation 98-35 - Brown Act No official of the City of Dublin has ever been prosecuted criminally for a violation of the Brown Act. I believe this is because the City has always followed both the letter and the spirit of the law. All closed sessions are agendized and properly noticed as required by the Act. Only those issues properly noticed are discussed at closed sessions. Actions taken by the Council are reported in open session in conformity with the Brown Acf s reporting requirements. . Administration (510) 833-6650 . City Council (510) 833-6605 . Finance (510) 833-6640 . Building Inspection (510) 833-6620 Code Enforcement (510) 833.6620 . Engineering (510) 833.6630 . Parks & Community Services (510) 833-6645 Economic Development (510) 833-6650 . Police (510) 833-6670 . Public Works (510) 833-6631 - Community Development (510) 833-6610 · Fire Prevention Bureau (510) 833-6606 EXHIBIT B . . . Honorable Philip V. Sarkisian August 19, 1998 Page 2 The Grand Jury Recommendation 98-35 calls for routine taping of closed sessions. Closed sessions frequently involve attorney-client privileged communications. The Legislature and the courts have carefully weighed the competing public interests in ensuring that public agencies have adequate legal representation and that the public's business is conducted in public. There have been numerous court decisions and legislative amendments balancing the Brown Act requirements and the attorney- client privilege. The Grand Jury's recommendation has the potential to upset this balance by requiring communications between attorney and client to be recorded, thus discouraging frank communication. While it may be advisable to revisit the delicate balance struck by the courts and the Legislature, that discussion should take place in the Legislature. All local agencies are subject to the Brown Act and they should all participate, along with the Legislature, in considering this serious issue. The recommendation should be considered as an amendment to the Brown Act, not as an ad hoc policy in one county and not in others. Recommendation 98-36 - Code of Ethics Both perceived and real conflicts of interest are serious issues in both local and state government. There are numerous effective statutes which prohibit public officials from making governmental decisions that further their own personal interests, rather than the interests of their constituents. The Political Reform Act, Government Code Section 1090, the prohibition on holding incompatible offices and the prohibition on incompatible activities are all effective in preventing local officials from placing their interests before their constituents' interests. These laws operate as restraints on the conduct of officials while they hold office. '..- The Grand Jury has suggested that governmental agencies operating within Alameda County adopt a conflict of interest code forbidding former employees of the local agency from representing clients before his or her former agency. This code, which would be in addition to the conflict of interest code already required by the Political Reform Act, would restrict individuals' conduct after they are no longer public officials. Honorable Philip V. Sarkisian August 19, 1998 Page 3 . This additional restriction could place a serious burden on the ability of the City of Dublin to attract the most qualified personnel. The proposed code includes a provision preventing a person from returning to an agency as an employee or consultant within one year after leaving the City's employ. Tllis would prevent a City from trying to bring back valuable employees who have left the City, but might be interested in returning to offer their services. The proposed code wiIl impact Dublin's ability to attract new employees, as well. Potential employees who are weighing job offers may be reluctant to take a job in Dublin, knowing that it might impact their ability to take employment with a company that regularly does business with the City. Applicants might be reluctant to take ajob that might restrict their opportunity to eventually work in the private sector. Unless all cities and public agencies statewide had similar conflict codes, it would make recruitment difficult for the City of Dublin. . Dublin appreciates the opportunity to comment on the Grand Jury's recommendations. Please contact me if you have any questions. Sincerely, CITY OF DUBLIN Guy S. Houston Mayor cc: City Council Neil B. Goodhue, Foreman Alameda County Grand Jury 1401 Lakeside Drive, Suite 1104 Oakland, CA 94613 K2/G/cc-mtgs/8-18-98/goodhue2.doc J:\WPD\MNRSW\114\Ol\LTR\JUL98\GOODHUE,729 .