Officials get ethics training

“Ethic” is defined in the Oxford Dictionary as a system of moral principles, rules of conduct.

Sounds pretty straightforward, but it is more complicated for public officials and employees who are subject to state and city laws as well the scrutiny of the community they serve.

“Ethical conduct by a public official involves more than common sense,” said Attorney Mark Meyerhoff, who conducted an “Ethics in Public Service” workshop Dec. 19, in City Hall.

Meyerhoff spent two hours reviewing state codes, what they mean, exemptions and consequences of violations for Laguna’s elected and appointed officials and designated employees. A 112-page booklet and a 16-page supplement were provided for the participants to help them follow the bouncing ball.

The public’s interest in the conduct of its officials and employees has increased in the past few years, according to Meyerhoff.

Media, he said, has played a role in the brighter spotlight being shone on the conduct of those in public service or employment. “They have gone from not reporting to free reporting,” Meyerhoff said.

However, promiscuity was not an issue Meyerhoff covered in the workshop.

His main thrust was conflict of interest, beginning with state Code 1090, which includes restrictions on the acceptance of gifts, free trips, travel expenses, honorarium, conduct while seeking a new job and conduct after leaving public employment or office.

It’s not simple.

Mayor Toni Iseman proposed at the Dec. 19 City Council meeting an amendment to the municipal code to restrict former members of the city’s Planning Commission and Design Review Board from making a formal or informal appearance or making written or oral communications to represent any other person in an attempt to influence the action or decision of the bodies of which they were formerly members.

The law of unintended consequences reared its head.

“That would mean no architect who served on the commission or board would be able to practice in Laguna for a year,” said Attorney Gene Gratz, who served on the Design Review Board Task Force and represented clients in the review process at the same time.

Iseman’s intent was not to jeopardize anyone’s ability to earn a living — representing one’s own clients, she said, was one thing, but she wants to curb influence wielded as a paid consultant on behalf of another professional’s project.

The discussion was continued to Jan. 30 for revisions to the wording of the proposed amendment.

State law does not prohibit former board or commission members from appearing as advocates to the board on which they once served.

But state code 1090 does prohibit them, as well as elected officials and municipal employees, from having a financial interest in contracts they enter on behalf of a public agency.

And, under 1090, the ban covers the entire process, from preliminary discussions to the final vote.

“It is a much broader definition than you would expect,” Meyerhoff said.

Basically, public officials must abstain from participating in the discussion or vote on a project if they would make enough money to influence their decision.

“Would you realize some gain that would divide your loyalties between the public good and your personal financial position?” Meyerhoff said.

Furthermore, the agency is banned from entering a contract in which one of the members has a financial interest, which has widespread implications.

If enforced years ago, when the late Mayor Lida Lenney had a financial interest in Waste Management of Orange County, the city might have been prohibited from contracting the company for trash collection services.

There are exceptions: not enough financial interest to sway one’s opinion (and who determines what might be the trigger for another person), the interest is not direct enough to create a problem, or necessity.

The rule of necessity allows a conflicted official to vote if there is no other alternative to action, such as being the only one in town under local law qualified to act as coroner, unlikely to come into play in a town the size of Laguna, Meyerhoff said.

Conflict of interest is also addressed in Political Reform Act 87100, passed by the voters in 1974.

The key difference from Code 1090 is that 87100 applies to all government decisions, not just contracts.

Under the act, the term “public official” includes every member, officer, employee or consultant of a state or local agency. “Making a decision” includes voting on a matter, appointing a person to a position, obligating one’s agency to a course of action on an issue or entering into a contract for the agency.

To make it easier for the governed to keep an eye on the government, “transparency laws” have been enacted.

Public officials must complete a statement of economic interest, commonly called Form 700. The statement alerts public officials to personal interests that might be affected while performing official duties

Only officials specified in the Political Reform Act or designated by their agencies’ code are required to file the form. A list of designated city officials and employees is available in the City Clerk’s office.

The Bible of transparent government is the state Ralph M. Brown Act, which requires actions of public commission, boards, councils and other public agencies to be made in public session, so that the public can participate.

“At the heart of it is the posting requirement,” Meyerhoff said.

An agency must post what is going to be considered in a meeting at least 72 hours ahead.

“It cannot be behind closed doors,” Meyerhoff said. “It must be where somebody walking around at 3 a.m. can see it and it must include time, location and a brief description of the item.”

Special meetings have to be posted 24 hours in advance. Emergency meetings that are not posted must be real emergencies, Meyerhoff said. City meetings are posted on the bulletin board on the wall opposite the main entrance to City Hall and some city business is advertised.

There are some exemptions to the public hearing requirement: discussions in closed session of pending litigation when no decision is made, labor or land acquisitions negotiations until completed, and some personnel issues.

According to the Brown Act, a meeting is any private discussion by a majority of the members of a legislative body of any item under their jurisdiction, including retreats and telephone conversations, as well as e-mails and video interviews of candidates.

“Majorities have to be careful about getting together,” Meyerhoff said.

A majority can meet socially and attend conferences as along as they do not discuss among themselves specific business pertaining to their jurisdiction, he said.

“Serial meetings” also violate the Brown Act. A serial meeting under the Brown Act is one where a series of individual meetings or contacts with other members of the same legislative body is for the purpose of drumming up support for or against an issue or project under their jurisdiction.

Other issues discussed by Meyerhoff included government’s obligation to provide information when requested. A response is required within 10 days as to whether agency will honor the request. There are exemptions, such as preliminary drafts, but the city would have to show a strong reason for withholding the requested information, Meyerhoff said.

Nepotism was the final topic of the workshop. Governments cannot discriminate against a job applicant because of marital status, he said.

“But if it affects safety, supervision, morale or security, it can be limited,” Meyerhoff said. “Public officials should not participate in a decision that affects family members.”

Public officials or employees who have ethical questions were advised to seek advice from an expert, a frequent occurrence for City Attorney Philip Kohn; stay well within the bounds of the law and consider how their actions would be viewed by a member of the general public.