Berkeley City Hall

Dean Metzger is proposing an ordinance to be titled the Public Ethics Commission which would combine and extend the powers of the Fair Campaign Practices Commission and the Public Open Government Commission to form the Public Ethics Commission.

A draft of the Act follows. Copies may be download in four formats:

See also Mr. Metzger's proposed {Government Ethics Act}.

Chapter 2.XX - PUBLIC ETHICS COMMISSION

2.XX.010 - Creation.

Berkeley City Charter Section 2.12 and Section 2.06 (the Fair Campaign Practices Commission and Open Government Commission) shall be amended and merged to become the Public Ethics Commission.

2.XX.020 - Functions and duties.

It shall be the function and duty of the Public Ethics Commission, for and on behalf of the city's residents, its elected officials, officers, employees, boards and commissions to:

  1. Oversee compliance with the city Berkeley Election Reform Act. (Chapter 2.12).

  2. Oversee compliance with the city Code of Ethics and City Ordinances.

  3. Oversee compliance with conflict of interest regulations as they pertain to city elected officials, officers, employees, and members of boards and commissions.

  4. Oversee the registration of lobbyists in the city.

  5. Oversee compliance with any ordinance intended to supplement the Brown Act or Public Records Act.

  6. Make recommendations to the City Council regarding amendments to the city Code of Ethics, Campaign Election Reform Act, Conflict of Interest Code, any ordinance intended to supplement the Brown Act or Public Records Act, lobbyist registration requirements, and submit a formal report to the City Council every two years concerning the effectiveness of all local regulations and local ordinances related to campaign financing, conflict of interest, lobbying, the Brown Act, the Public Records Act, and public ethics.

  7. Each year, and within the time period for submission of such information for the timely completion of the city's annual budget, provide the City Council with an assessment of the Commission's staffing and budgetary needs.

  8. Make recommendations to the City Council regarding the imposition of fees to administer and enforce local ordinances and local regulations related to campaign financing, conflict of interest, registration of lobbyists, supplementation of the Brown Act and Public Records Act and public ethics.

  9. Make recommendations to the City Council regarding the adoption of additional penalty provisions for violation of local ordinances and local regulations related to campaign financing, conflict of interest, registration of lobbyists, and public ethics.

  10. Issue oral advice and formal written opinions, in consultation with the City Attorney when necessary, with respect to a person's duties pursuant to applicable campaign financing, conflict of interest, lobbying, and public ethics laws.

  11. Prescribe forms for reports, statements, notices, and other documents related to campaign financing, conflict of interest, lobbying, and public ethics.

  12. Develop campaign financing, conflict of interest, lobbying, Brown Act, Public Records Act and public ethics informational and training programs, including but not limited to:

    1. Seminars, when appropriate, to familiarize newly elected and appointed officers and employees, candidates for elective office and their campaign treasurers, lobbyists, and government officials, with city, state and federal laws related to campaign financing, conflicts of interest, the Public Records Act, the Brown Act, lobbying, and public ethics.

    2. Preparation and distribution of manuals to include summaries of ethics laws and reporting requirements applicable to city officers, members of boards and commissions, and city employees, methods of bookkeeping and records retention, instructions for completing required forms, questions and answers regarding common problems and situations, and information regarding sources of assistance in resolving questions. The manual shall be updated when necessary to reflect changes in applicable city, state and federal laws related to campaign financing, conflicts of interest, lobbying, and public ethics.

  13. Perform such other functions and duties as may be prescribed by the Berkeley Code of Ethics, conflict of interest regulations, ordinances as they may be adopted to supplement the Brown Act and the Public Records Act or to require the registration of lobbyists in the city and Election Reform Act Ordinance.

In prescribing the above duties and functions of the Commission, it is not the intent of the Council to duplicate or overlap the functions, duties, or responsibilities heretofore or hereafter assigned to any other city board or commission or to a city department. As to such functions or responsibilities of another board or commission or of a department of the city, the Commission will render assistance and advice to such boards, commissions or departments as may be necessary.

Nothing in this section shall be construed to prevent city officers, employees, and elected or appointed officials from seeking advice directly from the City Attorney, or, when appropriate, concerning regulations and ordinances related to campaign financing, conflicts of interest, lobbying, and public ethics.

2.XX.030 - Authority.

In furtherance of the above enumerated duties and functions, the Berkeley Public Ethics Commission is authorized to:

  1. Conduct investigations, audits and public hearings.

  2. Issue subpoenas to compel the production of books, papers and documents and take testimony on any matter pending before the Commission. The Commission may find a person in contempt as provided by the general law of the state for failure or refusal to appear, testify, or to produce required books, papers and documents.

  3. Impose penalties and fines as provided for by existing ordinances.

    The Commission's decision to impose penalties and fines for violation of any regulation or ordinance (Chapter 1.20) over which the Commission has authority shall be appealable to a mutually agreed upon arbitrator whose decision shall be final. The decision of the arbitrator is not appealable to the City Council.

2.XX.040 - Composition—Terms of office.

Commissioners serving on the existing Open Government Commission and the Fair Campaign Practices Commission shall continue to serve until their terms expire. Three additional commissioners shall be appointed as described below. As the terms of the commissioners expire their seats will be replaced as described below.

  1. The Commission shall consist of 11 numbers. The Mayor, City Manager and City Attorney shall select one member each. The Mayors selection shall be a strong proponent of open government. The City Managers selection shall be a strong proponent of open government and knowledgeable in city operations. The City Attorney's selection shall be a strong proponent of open government and knowledgeable in open government law. The remining members will be selected from the pool of citizens who have qualified by completing the application process and the City Clerk has entered them in the applicatant pool. Each City Council member shall select one commissioner from the pool of citizens.

  2. Each appointee shall be a resident of the City of Berkeley but may not be an employee or volunteer in any City office, department, an elected official's office, or a contractor, vendor, or the holder of an ownership interest in an entity that is a contractor or vendor of the City. In addition, an appointee shall not have committed an ethics violation that has led to loss of a professional license or been convicted of a felony.

  3. Council appointees shall have completed an application form which shall be developed by the City Clerk within ten (10) business days of the effective date of this Ordinance, and modifiable thereafter by the Commission. Such application shall include:

    1. a listing by the applicant of specific qualifications showing a demonstrated interest in participatory democracy in local government,

    2. a statement signed by the applicant that he/she has read, understands, and supports the Ordinance and pledges to make decisions that are independent of the appointer and to work the number of hours required to ensure the Ordinance is fairly and fully implemented,

    3. and a personal statement on why the applicant wants to serve on the Commission. All Commission applications are Public Records.

  4. During the period of initial appointments and thereafter whenever there is a vacancy, the City Clerk shall publish notice of the vacancy in all Community Newspapers and on the City's website. The City Clerk shall maintain a standing file of individuals who have submitted applications and groups that have requested to be notified of vacancies. When a vacancy arises, the City Clerk shall promptly notify all contacts in the standing file. All applications received by the City Clerk from any source shall be submitted to the Council Members for their consideration.

  5. There shall be no term limits for Commissioners. Terms shall run concurrently with the appointing Council Member's term. Within sixty (60) days of the effective date of this Ordinance and thereafter after taking office, each Council Member shall appoint a new Commissioner or re-appoint an existing Commissioner, failing which the current Commissioner shall be deemed to be automatically reappointed. Once appointed or re-appointed, no Commissioner may be removed from office except as provided in this ordinance (D).

  6. Substitute appointments are prohibited.

  7. Six (6) members shall constitute a quorum. A majority vote of the quorum constitutes an affirmed action.

  8. A Commissioner's service shall terminate upon:

    1. Death or voluntary resignation.

    2. Conviction of a felony.

    3. Unexcused absence from three (3) consecutive, properly notice regular Meetings of the Commission or from 50% or more of all regular Meetings in a six-month reporting period as provided for in the City of Berkeley Commissioners' Manual.

    4. Expiration of the term of office of the appointing Mayor, City Manager, City Attorney and Council Member.

  9. A Commissioner may also be removed for cause by three quarters (3/4) vote of the whole Commission, which shall occur at a public Meeting noticed in accord with this Ordinance. Such removal shall be reflected in a written finding that the Commissioner in question:

    1. Is no longer able or willing to perform the duties of a Commissioner, or

    2. Has failed to meet one or more of the conditions described in Section 2.XX. B and C, or

    3. Has participated in and voted on an issue that constitutes a material conflict of interest for the Commissioner, or

    4. Has communicated, except in a public Meeting, with members of a Legislative Body regarding the merits of a disputed matter that is currently before the Commission or its Enforcement Committee.

  10. Where a vacancy has been created for any of the reasons stated in this Section, it shall be filled within thirty (30) days by the appointing person from the pool of applicants for Commission positions maintained by the City Clerk as described in Section 1.XX.040. Failure to do so will result in the Commission making the appointment within thirty (30) days after the Council Member fails to make an appointment.

2.XX.050 - Election of chairperson and meetings.

At the first regular meeting of each year the members shall elect a chairperson and a vice-chairperson. The Commission shall hold regular meetings at an established time and place suitable for its purpose. Other meetings scheduled for a time or place other than for regular meetings shall be designated special meetings. Written notice of special meetings shall be provided to the members, the Council, and the public press at least seventy-two (72) hours before the meeting is scheduled to convene.

2.XX.060 - Rules, regulations and procedures.

The Commission shall establish rules, regulations and procedures for the conduct of its business by a majority vote of the members present. The Commission must vote to adopt any motion or resolution. The Commission shall transmit to the City Council any rules, regulations and procedures adopted by the Commission within seven calendar days of adoption. A rule, regulation or procedure adopted by the Commission shall become effective sixty (60) days after the date of adoption by the Commission unless before the expiration of this sixty (60) day period two-thirds of all the members of the City Council vote to veto the rule, regulation or procedure.

2.XX.070 - Staff assistance.

The City shall provide a part-time Staff person to the Commission to act as its secretary. The Commission shall review and make recommendations to the City Manager regarding the qualifications and job description for this position. Two (2) members of the Commission, selected by a majority vote of the Commission, shall sit on the interview panel and make recommendations to the City Manager regarding the applicants.

  1. The City Attorney may publish legal opinions in response to a request from any person as to whether a record is public.

  2. All communications to or from the City Attorney's Office with regard to this Ordinance, including but not limited to petitions, requests for opinion, and opinions, shall be Public Records unless specifically determined to be subject to the attorney-client privilege.

    The City Attorney shall, upon request, provide legal counsel for the Commission. If a majority of the Commission or the City Attorney determines that there is a conflict of interest, which the Commission declines to waive, the City shall, at the Commission's request, provide the reasonable fees and expenses of outside counsel chosen by the Commission, from the City Attorney's budget to retain outside counsel.

2.XX.090 - Protection against retaliation.

  1. No officer or employee of the city shall use or threaten to use any official authority or influence too effect any action as a reprisal against a city officer or employee for acting in good faith to report or otherwise bring to the attention of the Commission or other appropriate agency, office or department, information regarding the violation of any regulation or ordinance over which the Commission has authority.

  2. No officer or employee of the city shall use or threaten to use any official authority or influence to discourage, restrain or interfere with any other person for the purpose of preventing such person from acting in good faith to report or otherwise bring to the attention of the Commission or other appropriate agency, office or department, information regarding the violation of any regulation or ordinance over which the Commission has authority.

Endnotes

{Government Ethics Act}

See Proposal for a Berkeley Governement Ethics Act:

pro-democracy-project/2018/12/17/ethics-act-draft-1


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