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12.B Report Censure of Council Member Guthrie 2021-02-16 PISMO BEACH COUNCIL AGENDA REPORT Agenda Item #12.B SUBJECT/TITLE: CENSURE OF COUNCIL MEMBER MARCIA GUTHRIE RECOMMENDATION: The Council approve a motion to censure Council Member Marcia Guthrie and take other measures as outlined below. BACKGROUND: The City Council held a closed session on January 27, 2021 pursuant to paragraph (2) of subdivision (d) of Government Code §54956.9 involving potential litigation surrounding an ADU application in the Coastal Zone. During that session, Council agreed that only the City Attorney would convey the results of that meeting to the applicant or the applicant’s representative. Contrary to that decision, Council Member Guthrie had at least one email exchange or other communications with the applicant’s representative concerning the project. This is a direct violation of the terms of the closed session. This behavior is contrary to the City’s adopted Code of Ethics (Attachment 1). Under Section 10 of the Code, it states: "Members shall respect the confidentiality of information concerning property, personnel or affairs of the City. They shall neither disclose confidential information without proper legal authorization nor use such information to advance their personal financial or private interests." This behavior is also apparently in violation of Government Code 54963 which forbids unlawful disclosure of confidential information obtained in a closed session. Council Member Guthrie also gave direction to staff concerning this project which is contrary to Sections 14 and 16 of the Code of Conduct and to the Municipal Code Section 2.08.060. The role of the Council is to make policy and the role of the City Manager is to carry out that policy. When an individual Council Member gives direction, it interferes with the ability of the City Manager and staff to carry out the direction of the Council as a whole. The Code of Ethics requires all Council Members to affirm that they have read and understand its provisions of the Code upon assuming office. In addition, the Council reviewed the Code of Ethics at its January 19, 2021 meeting just days before the violations occurred. The Code of Ethics under Section 18 requires the Mayor to intervene when the provisions of the Code are violated by a Council Member. This section also outlines sanctions the Council can take which include reprimand, formal censure, loss of seniority or committee assignment, or budget restriction. The behavior in question constitutes a serious transgression of the Code of Ethics and the Municipal Code and could have substantial consequences in the orderly conduct of Council Agenda 2-16-2021 12.B-1 Council business. For these reasons, the Council should consider the full range of sanctions to impose against Council Member Guthrie. Conclusion and Recommendation by the Mayor and Mayor Pro Tem Council Member Guthrie violated the Code of Ethics, the Municipal Code and State law along with the trust of other Council Members which draws into question Council Member Guthrie’s ability to represent the city in any capacity. For these reasons, the Mayor and Mayor Pro Tem recommend that Council by motion carry out the following: 1. Formal Public Censure 2. Loss of Committee Assignments 3. Refrain from contacting staff regarding this project unless it has come before the Council 4. Refrain from giving any direction to staff whatsoever 5. Refrain from representing the City in any capacity The Mayor and Mayor Pro Tem do not take this matter lightly and believe that these sanctions are necessary to emphasize the serious nature of the violations. FISCAL IMPACT: Fiscal impact is unknown ALTERNATIVES: 1. The Council could modify the given recommendations or take no action. ATTACHMENTS: 1. Code of Ethics Prepared by: Meeting Date: February 16, 2021 Ed Waage, Mayor and Mary Ann Reiss, Mayor Pro Tem Submitted by: Ed Waage, Mayor Council Agenda 2-16-2021 12.B-2 RESOLUTION NO R 05 067 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PISMO BEACH ADOPTING A CODE OF ETHICS FOR CITY COUNCIL BOARDS AND COMMISSION MEMBERS WHEREAS the Citizens of Pismo Beach are entitled to have fair ethical and accountable local government and WHEREAS Pismo Beach maintains a commitment to excellence and effective functioning of democratic government and WHEREAS integrity of officials of local government is key to effective and fair operation of government NOW THEREFORE BE IT RESOLVED the City Council of the City of Pismo Beach hereby adopts this Code of Ethics which pertains to members of the City Council and all members of the City Boards and Commissions and also to those vendors doing business with the City UPON MOTION OF Councilmember Natoli seconded by Councilmember Rabenaldt the foregoing resolution was passed approved and adopted by the City Council of the City of Pismo Beach this 4th day of October 2005 on the following roll call to wit AYES Councilmembers Natoli Rabenaldt Gonzales Gee Higginbotham and Mayor Reiss None None None NOES ABSENT ABSTAIN ATTEST tint Council Agenda 2-16-2021 12.B-3 Attachment 1 CODE OF ETHICS For The City of Pismo Beach Council Boards and Commission Members Adopted by the Pismo Beach City Council Date approved October 4 2005 Preamble All citizens and businesses of Pismo Beach are entitled to have fair ethical and accountable local goverrunent which has earned the public s full confidence for integrity In keeping with the City ofPismo Beach s commitment to excellence the effective functioning of democratic goverrunent therefore requires that Public officials both elected and appointed comply with both the letter and spirit of the laws and policies affecting the operations of goverrunent Public officials be independent impartial and fair in their judgment and actions Public office be used for public good not for personal gain Public deliberations and processes be conducted openly unless legally confidential in an atmosphere of respect and civility This Code of Ethics as adopted by the Pismo Beach City Council pertains to members of the City Council and ofthe City s boards and commissions and to those vendors doing business with our city to assure public confidence in the integrity oflocal goverrunent and its effective and fair operation 1 Acts in the Public Interest Members will work for the common good of the people ofPismo Beach and not for any private or personal interest and they will assure fair and equal treatment of all persons claims and transactions coming before the Pismo Beach City Council boards and commissions 2 Comply with the Law Members shall comply with the laws of the nation the State of California and the City of Pismo Beach in the performance of their public duties These laws include but are not limited to The United States and California constitutions Fair Political Practices laws pertaining to conflicts of interest election campaigns financial disclosures employer responsibilities and open processes of goverrunent and adopted City ordinances and policies 3 Conduct of Members The professional and personal conduct of members must be above reproach and avoid even the appearance of impropriety Members shall refrain from abusive conduct personal charges or verbal attacks upon the character or motives of other members of the council boards and commissions the public and staff Pismo Beach Code of Ethics Page I of4Council Agenda 2-16-2021 12.B-4 Attachment 1 4 Respect for Process Members shall perform their duties in accordance with the processes and rules of order established by the City council and boards and commissions governing the deliberation of public policy issues meaningful involvement of the public and implementation of policy decisions of the City Council by staff 5 Conduct of Public Meetings Members shall prepare themselves for public issues listen courteously and attentively to all public discussions before the body and focus on the business at hand They shall refrain from interrupting other speakers making personal comments not germane to the business of the body or otherwise interfering with the orderly conduct of meetings 6 Decisions Based on Merit Members shall base their decisions on the merits and substance of the matter at hand rather than on unrelated considerations 7 Communication Members shall publicly share substantive information that is relevant to a matter under consideration by the Councilor boards and commissions which they may have received from sources outside of the public decision making process 8 Conflict of Interest In order to assure their independence and impartiality on behalf of the common good members shall not use their official positions to influence government decisions in which they have a material financial interest or where they have an organizational responsibility or personal relationship which may give the appearance of a conflict of interest In accordance with the law members shall disclose investments interests in real property source of income and gifts and they shall abstain from participating in deliberations and decision making where conflicts may exist 9 Gifts and Favors Members shall refrain from accepting any gifts favors or promises of future benefits which might compromise their independence of judgment or action or give the appearance of being compromised 10 Confidential Information Members shall respect the confidentiality of information concerning property personnel or affairs of the City They shall neither disclose confidential information without proper legal authorization nor use such information to advance their personal financial or private interests 11 Use of Public Resources Members shall not use public resources unavailable to the public in general such as City staff time equipment supplies or facilities for private gain or personal purposes Pismo Beach Code of Ethics Page 2 of 4Council Agenda 2-16-2021 12.B-5 Attachment 1 12 Representation of Public Interests In keeping with their role as stewards of the public interest members shall not appear on behalf of the private interests of third parties before the Councilor any board commission or proceeding ofthe City nor shall members of boards and commissions appear before their own bodies or before the Council on behalf of the private interests of third parties on matters related to the areas of service of their bodies 13 Advocacy Members shall represent the official policies or positions ofthe City Council board or commission to the best of their ability when designated as delegates for this purpose When presenting their individual opinions and positions members shall explicitly state they do not represent their body or the City ofPismo Beach nor will they allow inference that they do 14 Policy Role of Members Members shall respect and adhere to the council manager structure ofPismo Beach City government as outlined by the Pismo Beach Municipal Code In this structure the City Council determines the policies of the City with the advice information and analysis provided by the public boards and commissions and City staff Except as provided by the City Municipal Code members shall not interfere with the administrative functions of the City or the professional duties of City staff nor shall they impair the ability of staff to implement Council policy decisions 15 Independence of Boards and Commissions Because of the value of the independent advice of boards and commissions to the public decision making process members of Council shall refrain from using their position to unduly influence the deliberations or outcomes of board and commission proceedings 16 Positive Work Place Environment Members shall support the maintenance of a positive and constructive work place for the City employees and for the citizens and businesses dealing with the City Members shall recognize their special role in dealings with City employees to in no way create the perception of inappropriate direction to staff 17 Implementation The Pismo Beach Code of Ethics is intended to be self enforcing and is an expression of standards of conduct for members expected by the City It therefore becomes most effective when members are thoroughly familiar with it and embrace its provisions For this reason ethical standards shall be included in the regular orientations for candidates for City Council applicants to boards and commissions and newly elected and appointed officials Members entering office shall sign a statement affirming they have read and understand the City ofPismo Beach Code of Ethics The Code of Ethics shall be reviewed annually by the City Council boards and commissions and the City Pismo Beach Code of Ethics Page 3 of 4 Council Agenda 2-16-2021 12.B-6 Attachment 1 Council shall consider recommendations from boards and commissions and update as necessary 18 Compliance and Enforcement The chairs of boards and commissions and the Mayor have the additional responsibility to intervene when actions of members that appear to be in violation of the Code of Ethics are brought to their attention The City Council may impose sanctions on members whose conduct does not comply with the City s ethical standards such as reprimand formal censure loss of seniority or committee assignment or budget restriction Under the City s Municipal Code the City Council may also remove members of boards and commissions from office A violation of this Code of Ethics shall not be considered as a basis for challenging the validity of a council board or commission decision Pismo Beach Code of Ethics Page 4 of 4Council Agenda 2-16-2021 12.B-7 Attachment 1