San Clemente City Council Abolishes Officials Ethics Policy; Substitutes “Education and Referral” Procedure

Last night, the San Clemente City Council voted unanimously to abolish the “Officials Ethics Policy” – the city’s process for filing ethics complaints against councilmembers and appointed city officials. In its place, the council approved an “education and referral” policy under which complainants will be referred to specific agencies such as the California Fair Political Practices Commission or the District Attorney.

The Officials Ethics Policy had been adopted in 2004 and provides a mechanism for the public to obtain a public hearing by the council of alleged violations.  Under its provisions, “any person” may submit to the City Clerk a complaint alleging a violation. Complaints would agendized for the next city council meeting and the council would conduct a preliminary investigation and if it determines a violation was likely, the council would conduct a formal investigation and hearing. The policy contains no remedies or penalties.

Complaints were rare until last year, when a group of residents was catalyzed to action by the council decision to effectively ban short-term rentals in most parts of San Clemente. One of the leaders of this group is long-time resident Jim Bieber – a veteran conservative activist and owner of a political mail house.

Among other things, these residents successfully gathered enough signatures to qualify a ballot measure to shift city council elections from an at-large to a by-district basis. They pointed out that four of the five councilmembers live within a few blocks of each other.

Councilmember Kathy Ward utilized staff time and resources to help her write and publish an op-ed opposing ballot measure in order to discourage voters from signing the petition. Activists responded by filing a complaint under the ethics policy.

Tipping Point: City Council’s Ill-Fated Measure OO Recount Attempt
The San Clemente City Council also found itself in hot water when it crossed the line into electioneering by voting to fund a re-count of Measure OO, the hotel bed tax increase it had placed on the November ballot. Measure OO lost by 8 votes and the council hoped to flip the election result and obtain approval of the tax increase. After OC Daily published an article on this unusual and probably illegal action, the California Policy Center threatened the city with a lawsuit, causing the council to drop the recount before it started. It also prompted an Official Ethics Policy complaint alleging the city manager used city letterhead for political campaign purposes when filing the recount request as an advocate of the “yes” on Measure OO position.

Fast forward to the December 20, 2016 council meeting where the complaint was heard. Councilman Tim Brown made a motion to dismiss the complaint while stating “We are going to receive ethics complaints and we will deal with them, but I’ll be damned if I’m going to sit here and take this abuse.” At the same meeting, Brown identified Bieber as the filer of the complaint; Brown’s action violated of Section 6.1 of the policy stating that “the identity of the complainant shall remain confidential.”

Bieber subsequently e-mailed Brown requesting an apology for violating the confidentiality of his complaint. Brown responded, “I won’t be apologizing for anything.”

At last night’s council meeting, Brown opined that the Official Ethics Policy has “become such a cause of dissension right now” and that the four ethics complaints filed in recent months “erodes the public trust.”

The city attorney noted San Clemente was one of a few Southern California cities with its own ethics policy pertaining to councilmembers and appointed city officials, and further opined it was unusual for a city council to sit in judgment of its own members regarding ethics complaints.

In the end, the council voted 4-0 to abolish the Official Ethics Policy and replace it with the “education and referral” process. Going forward, complaints will have to be filed with the FPPC, District Attorney or other agency, which is a long and much less transparent and responsive process. San Clemente’s action stands in contrast to the County of Orange, which is establishing a county Ethics Commission precisely because relying on the FPPC and DA for enforcement is slow and unwieldy.

Council watchers noted that while the Officials Ethics Policy has been on the books for more than a dozen years, it wasn’t until residents began making regular use of it that the city council only decided the policy was flawed and deserving of abolition. Whatever its procedural flaws, it was residents only mechanism for forcing their elected city council representatives to publicly examine potential and actual ethical lapses, especially ones that don’t necessarily rise to the level of a transgressions subject to prosecution or punishment.

While understanding some technical tweaking of the policy might be called for, Bieber was critical of the council decision to altogether abolish the Officials Ethics Policy.

Noting Brown’s comment from the December 20 council meeting, Bieber said, “It appears that Tim Brown once again was lying as he reversed is position of being willing to ‘deal’ with complaints from the public and made the proposal to destroy the public’s ability to file an ethics complaint with the city.”

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