Code of Ethics Adjudicating Body - Regular Meeting

This evening's meeting to order at 06:01, and we start off as usual with our pledge of allegiance. Who would like Rica, would you like to? Ball and told. Okay. Thank you.

So, the first item on our agenda as always is going to be public public comment. So to comment on any matters within the jurisdiction of the board you're invited to participate in person or also call (951) 826-8688. Press 9 to be placed in the queue to speak. Individuals in the queue will be prompted to unmute by pressing 6 when you are ready to speak. To participate via zoom, I use this the only time I read this.

Use the link https:zoom.us//sorryj/92696991265 and then you select the raise hand function to request to speak and an on screen message will prompt you to unmute to speak. I know. I don't have that long left on my term. Hi, sweetheart. Okay. Anyone waiting in? Okay. And then we have some people in chambers, but we don't have any cards. Right? Okay.

Alright. We will move things along and, move on to our consent calendar, where we approve the minutes of our December 4 meeting as we did not have a January meeting. Is there a motion to approve or any discussion needs to happen for those minutes?

I move that we approve the minutes.

Okay.

I second.

Alrighty. The item on our agenda is our discussion calendar. So, we do have proposed revisions to sections two point seventy eight point zero five zero and two point seventy eight point zero six zero of the RMC code chapter two seven eight code of ethics and conduct to address digital communications and misconduct. Do we have anyone for public comment? Alright.

I thought I thought we did comments first. Okay. Hello.

We'll take comments as soon as I get to the presentation.

That was my fault.

Oh, it's all good. Welcome. Alright. Good evening, everyone. My name is Ruth Ann Solara. I'm from the city attorney's office, and I am here tonight to present on some further discussion and get your feedback on some proposed revisions to the code of ethics, specifically regarding digital communications. Some background. As you all are very well aware, our annual review of Code of Ethics began last June. All the boards

and

commissions, including this Board of Ethics, reviewed and submitted seven proposed revisions committee. In November, the governmental processes committee reviewed those and then forwarded six of the seven to the city council for further consideration, which included the two that we're gonna talk about tonight. And then on December 9, the city council held a public hearing reviewing those, recommendations. And the two that we're gonna look at tonight were actually referred back to the board of ethics and then the governmental processes committee for some further discussion. And we'll get into how that arose and kinda what the concerns were at that level.

So first is what was the proposal? There were two specific ones. First is a revision to our core values statement, is in our municipal code section two seven eight zero five zero, was to add a new subsection regarding digital communications stating that all digital communications must reflect the city's commitment to impartiality, fairness, and integrity. Online activity, messages, or actions should not create or appear to create bias, partisanship, a conflict of interest, or a predisposition on pending city matters. So the next one, proposed revision, was to the prohibited conduct section which is in 278.06.

This would be a new subsection O which states digital misconduct prohibited. Those subject to this code are prohibited from engaging in digital misconduct. Online activity or messages that create or appear to create bias, partisanship, a conflict of interest, or predisposition on pending city matters are strictly prohibited. Any violation of prohibited conduct under this code shall encompass online activity while representing your appointed or elected position. So the reason for the referral back was that the governmental processes committee and then ultimately the city council requested that the city attorney's office review these two, provisions regarding digital misconduct with a specific eye to, potential issues regarding the First Amendment, and challenges regarding speech.

So the city attorney's office raised concerns that the proposed language may trigger first to challenge First Amendment challenges. It's also potentially duplicative of other sections already in the code and is potentially too broad and may capture some conduct that was not intended. So first, going through the overlap and broadness issues. The issues, first, conflicts of interest. This is potentially duplicative of subsection f of prohibited conduct, which already prohibits conflicts of interest specific to be that are governed by the Fair Political Practices Act.

Next, pending city matters was drafted rather broadly and should be narrowed within this to be within the subject matter jurisdiction of that particular public official. So for example and a pending city matter could be potentially anything, but should a member of the planning commission be restricted from making statements about something that is not before the planning commission, but for example, would be before, like, the parks and rec commission or something outside the Planning Commission's subject matter jurisdiction. And, again, that's just an example. But So narrowing that to be within the public officials' subject matter jurisdiction is recommended. And then, again, bias is also covered for quasi judicial matters where impartiality is a legal requirement of the proceeding.

These are proceedings where a party is seeking something, again, with the planning commission. Examples would be like a hearing on a conditional use permit. They're they're seeking to have a right adjudicated by the body. Impartiality is a legal requirement already of that proceeding. The proposed language would actually expand the prohibition on this bias into all types of proceedings because it was not limited to quasi judicial matters.

Next, and potentially the more complicated issue, is those of the First Amendment. So the First Amendment, as we all know, prohibits governments from retaliating against individuals for engaging in protected speech. Public officials retain this right to free speech when acting in their private capacity. So when they're not acting as a public official, they they are still permitted in their private capacity to exercise all those rights. And so any kind of revisions that could potentially reach into the private speech of a public official could bring us to potential First Amendment clashes and issues.

So the legal analysis on the First Amendment is also often very complex and fact specific for every single issue. So it's difficult to anticipate every potential scenario where this could come up. But kinda to summarize some of the most important and most likely issues is that appointed officials cannot be punished for their private capacity speech. Elected officials have slightly less protections, but they can only be subjected to censure for their speech and not other types of punishments that or sanctions that are currently listed in our code. So narrowing the proposed digital conduct language to explicitly avoid this private speech and then also limiting the available sanctions will help avoid these First Amendment Amendment issues.

So a couple options for you of what you could potentially look at, and discuss is, number one, to avoid the First Amendment issue altogether, we can take out the concept of a sanction. So this if this is as a core value only, our core values are aspirational value statements by the city, but they're not subject to sanctions under the code. And so if it was left as a core value, then the second piece of a First Amendment analysis, which is the sanction, would be removed altogether. Option two is some language revisions that I put in here and we'll go over, to further make it more explicit that private speech is protected. We would remove some of the duplicative sections to be consistent with other provisions of the code of ethics and then also limit the sanction to censure only.

And what this would do is two things, is that the private speech of the public official will be clearly protected, and then also there is case law out available that sanctions beyond censure could violate the First Amendment, but censure has been permitted. So and to kinda explain, censure is a a public statement opposing the action, but doesn't actually go so far as to impede the public official's ability to carry out their function that they were appointed or elected for. So they so they would remain carrying out their duties but would still have the the statement by the city acknowledging that the violation had occurred. So some of what this revision could look like. So this is into the core values section.

The you could see I've done some strike throughs and added the bold language. So this would read, digital communication must reflect the city's commitment to impartiality, fairness, and integrity. Online activity, messages, or actions should not create or appear to create bias, partisanship, or predisposition on city matters that fall within the subject matter jurisdiction of the public official, sorry for that typo, and are quasi judicial proceedings. Next, the potential revisions are a little more lengthy here, but I'll get through them all for you. On the prohibited conduct, this would read as digital misconduct prohibited.

Those subject to this code are prohibited from engaging in digital misconduct while acting in an official capacity. Online activity or messages that create or appear to create bias, partisanship, or predisposition on city matters that fall within the subject matter jurisdiction of the public official and are quasi judicial proceedings are strictly prohibited. Any violation of prohibited conduct under this code shall be limited to online activity while representing the public officials appointed or elected position using city official accounts. Sanctions for this paragraph shall be limited to censure only. And so kind of breaking all the bolded pieces down, it makes clear in a few places that this is for official activity, and it limits this to an official that is using an account provided by the city such as a Facebook page, a city email address.

That way, it is explicitly clear that it is official conduct. And, additionally, the issue of, the type of sanction is clarified in this section. Alright. So my recommendation for you tonight is to review the presentation and the potential options and provide your feedback on on the proposed revisions. After tonight, your comments and recommendations will be taken to the governmental processes committee for review before anything proceeds to the city council. After public comment, I will be available for questions.

Okay. Thanks so much. Alright, so then we are ready to take a look at public comment if there's any pending requests either online or in person. No hands raised. Okay.

It doesn't look like we have any public comment for that one. So, I do have a question if you don't mind. I don't know if others do but go ahead and use your request to speak if there's questions you have. We'll kind of try to keep it organized here. So my first question was and I because you you ran through it kinda quickly which I appreciate but it didn't give me time to think.

So the I think the only thing where I was a little fuzzy on was on the option two that you gave where we are adding the part that says and our quasi judicial matters. Can you can you expand on, again the ways that it causes a problem to not have the quasi judicial matters put in there?

Sure. This expands Essentially, what we talked before is that the issues of bias such as in predisposition, etcetera, those are covered under the concepts of due process already in a quasi judicial proceeding. Those are legal requirements to ensure that proceeding meets all of the requirements to uphold the ultimate decision. But when we're outside of a quasi judicial proceeding, just like tonight, that's not already a requirement for you. What the language that was proposed and having it apply to something that is not a quasi judicial proceeding would actually expand the requirement for impartiality beyond where it already is.

That's why for that. Okay.

Because I got I understand for sure why we would like to have, you know, specifically regarding city matters and and all that like that all made sense to me but I I just wasn't clear on it having to be tied back to a potential proceeding or anything like that was causing me some confusion. Okay. No one else has questions today?

I didn't have a question for you but if nobody else has a question I wanted to maybe start off the discussion. Sure. And then to so my idea which is what we should discuss. I mean I'm not saying let's do this, but for discussion, I'm thinking it might be just best overall to take it out of the code of the second part. The

The prohibited conduct. You mean option one.

Yes. My brain just kind of froze for a moment to take it out of the prohibited conduct because I can already see what a can of worms this might open. Know, trying to argue, is this showing bias to say this or that or whatever. I mean, it just seems like it's going to be so complicated and very difficult to figure out and to people can bring up all kinds of complaints just about some language they didn't like. So that would think go with the revisions you proposed for the first part, the code of conduct but not the other one which already my brain has thrown away.

Prohibited conduct. So that's what I propose and so what do you guys want do? What do you think?

See and I thought option two sounded better to me but member Hernandez has asked.

And I got confused because it looked like there was two option two's so I couldn't remember which one was which. So that's why I'm just describing them as one that you know there's one for the code of conduct and one for prohibited conduct.

Can we get option two back up? If you don't mind. It'd be, yeah, really good

Option to be two is recommended revisions for both core values and prohibited conduct. Option one was to only proceed with core values and not add digital the the section to prohibited conduct.

Right. So I guess I'm proposing we just go with the first the first proposal. Option one. That's just me.

I'm gonna gonna say I like option two. I thought the whole point of us rewording this and coming up with this whole prohibited conduct was to make sure that we included that it was made clear that the prohibited conduct also included no official city accounts when it came to online activity. Obviously, when it comes to the individual's private account, they're covered under the first amendment. I like the way the language clarifies it and I think it makes it very clear that it only applies to official city or you know, official public accounts that have to do with the city. So I really like option two.

It kind of breaks it up into the core prohibited the core values and prohibited conducts. And I also like how it's worded to kind of clarify all of that. I don't think that there should be any type of confusion because it just makes it really clear that it includes the prohibited conduct and that it has to do with online accounts and what they say on those online accounts. Just so that it's clear that people don't think well it's only in person versus digital. And I thought was the whole purpose of why we were moving forward with all of that.

I agree. I think and even when we were coming up with these changes too I know that we kind of struggled to make sure but the spirit of and the meaning behind why we even made suggestions was when a public official or elected official either is conducting business or is conducting themselves within their title, while they're on the job specifically and obviously, well I guess not obviously the way we did it but yeah, to make sure that when they're working in their capacity as that public official that they need to conduct themselves according to the conduct that they agreed to when they took their oath. Any other discussion?

My concern is not that we don't have something in the prohibited conduct. It's that it's so it's so vague. Something that appears to create bias, could that be like if a city council person on their official emails or something says, I really don't like warehouses or whatever. Is that now prohibited conduct? Because they just said they have a bias. They don't like warehouses.

That would probably depend on if there's a matter dealing with warehouses that's that's currently being discussed at city council, and, they would go ahead and on their official website say something related to that and show bias towards that even though they haven't made a decision or that.

Or online platforms that they have. Yeah. Mhmm.

Yeah. Could I ask our city attorney to weigh in on that? Like, that be violating it if a city council person, like, say, they're looking at a warehousing and they just said somewhere and wonder official things, you know, I just don't like warehouses. Is that

And if and if you could clarify. Sorry. Specifically her example on the email because I'm

not Like an email. Uh-huh. An email coming from them as a city council person to somebody and saying I don't like warehouses.

Because those are not necessarily public.

Yes. Emails and Facebook posts would be be looked

at But

if it's coming from their city email account, a council member so and so's city email account, not from their personal email Mhmm. Could they not express an opinion about something? Would expressing an opinion show bias?

It depends on who they're sending it to. Now if they're sending a blast email to all their constituents stating that they don't like warehouses and there's a proposed warehouse that's being that's pending in their ward or just in the city in general as opposed to sending it to their assistant. Mhmm. It it's it's not the same.

So it wouldn't be violating their first amendment right? Or you're saying No. Because that's already It's already established. Yeah. It's already established.

So as as a city council member, they couldn't say to the public in their official capacity, I don't like warehouses. Could they say it in person rather than online?

If they're before if they're on the the board, could they state it I mean, if it's being discussed

So, like, they're at a city council meeting and

Or would you what's your I think context would

be the most important part of is gonna be important to build on on your on the hypothetical we have. So the in person versus online. So we have the online the public blasts where there's a warehouse project pending before them and they say, I don't like this project. That could probably be in here. But then as far as in person, so we don't have something that says you can't do this in person, but again we go back to it's a quasi judicial proceeding.

So if they made that same statement in person, there's an argument that they are not impartial in those quasi judicial proceedings. So it would still be covered through a slightly different legal mechanism but that is potentially how it could come up because there's plenty of case law about quasi judicial proceedings and in person statements that are made that show that the official is not impartial. I think that could easily also translate to online communications because you have to come to those types proceedings with an open mind and make their decisions based on the facts presented. I hope that helps.

It does. Yeah. Thank you.

Alright. So I think I think we're kinda landing in the same place.

We're Yeah.

Kinda saying different things, but we're we're still landing in the same place.

Well, I like option two regardless. I think it like I said, I've I've already stated that. I think it's clear. I think it covers everything that we wanted as far as what we were going for. It clarifies it. The language makes it, you know, just so that there's no misunderstandings. Misunderstandings and I like number two but I guess unless there's no other discussion.

Yeah. Was gonna say I think I'll just make a motion to go with the option two revisions for both.

Okay.

Can you guys get a second? You have to

talk to

me. Did.

Oh, I second the motion then. I was like, did you make the motion? I heard I was gonna, but I didn't hear this. I I second the motion. Okay. Okay.

Yeah. Well, you guys sucked me into it.

Motion carries unanimously. Wonderful. Thank you so much for the clarity and helping us along. Appreciate it very much.

You all have a nice evening.

Thank you.

You too. Thank you.

You as well. Alrighty. So then we are moving on to communications. We have our ad hoc committee updates and public comment. Okay.

Sorry, I've been out of this chair for a couple months here. I know. Well, I have to say obviously with the holidays and all the things going on that we did not get anywhere much but I will promise to put together a meeting before we even leave this chamber today for the next thing so that next meeting we actually have something to say. Unless anyone else has any? No?

Okay. Alright, that's the only ad hoc we have. And that'll be number four. So any board member updates from anyone? Negative, okay. Moving on to item six and our last item for us tonight. Items for future board consideration. If there's anything that any of us would like to add to upcoming minutes speak now or forever hold your peace.

I would like to add a discussion about we we will be meeting between here and next meeting as far as the ad hoc committee focusing on the AIG and all the other stuff. So and the charter committee. So I'd like to add that to the calendar for the next meeting.

Vice Chair, can you clarify what you're asking for?

Add a discussion as far as an update for the ad hoc committee that Gil and I are on as far as the charter committee and yeah.

Okay. Exciting. Anybody else? Anything niggling around up there? Nope? Okay. I will call then and to oh. Yes? I was ready.

You think we would need to add that to the calendar to discuss before anyone answers.

Or could we just ask the question now? Mean, no? No, okay.

Alrighty. So, two worthwhile things to talk about next time. I will adjourn. Thank you everyone.

Thank you.