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Staff Report.Code of Conduct with attachments Reviewed by: Assistant Town Manager and Town Clerk 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov TOWN OF LOS GATOS COUNCIL AGENDA REPORT MEETING DATE: 10/04/2022 ITEM NO: 11 DATE: September 29, 2022 TO: Mayor and Town Council FROM: Gabrielle Whelan, Town Attorney SUBJECT: Adopt the Updated Town Council Code of Conduct Policy as Recommended by the Policy Committee RECOMMENDATION: Adopt the Updated Town Council Code of Conduct Policy as Recommended by the Policy Committee. BACKGROUND: At the Town Council Retreat meeting on September 17, 2022, the Council discussed among other things the roles and responsibilities of the Mayor and individual Councilmembers as it relates to external communications. At the conclusion of the retreat the Council requested that the Council Policy Committee examine potential modifications to the Town Council Code of Conduct. At its September 27, 2022 meeting, the Council Policy Committee unanimously agreed to forward a recommendation to the Town Council to approve proposed updates to the Town Council Code of Conduct Policy (see Attachment 1). DISCUSSION: During discussions of roles and responsibilities for external communications, there was general agreement around two primary themes for potential policy modification. The first was that, prior to the Council adopting a policy stance based on the outcome of a Council vote, individual Councilmembers should have the latitude to express their general opinions on issues during the policy development phase of the deliberative process. PAGE 2 OF 2 SUBJECT: Code of Conduct Policy Update DATE: September 29, 2022 DISCUSSION (continued): The second was that once a majority vote has occurred resulting in the adoption of a policy directive, the Mayor would be the primary contact for communicating those policies. In addition, the Council discussed clarifying language around the ability for Councilmembers to explain individual votes whether in the majority or minority. Attachment 1 contains the draft (redlined) language for the Committees consideration. CONCLUSION: This action will clarify roles and responsibilities of the Mayor and individual Councilmembers as it relates to external communications COORDINATION: The preparation of this report was coordinated with the Town Clerk, the Town Manager, and the Town Attorney. FISCAL IMPACT: Amendments to the Town Council’s Code of Conduct will not have a fiscal impact. ENVIRONMENTAL ASSESSMENT: Amending the Town Council’s Code of Conduct is not a project defined under CEQA, and no further action is required. Attachments: 1. Draft Redline Town Council Code of Conduct ATTACHMENT 1 COUNCIL POLICY MANUAL TITLE: Town Council Code of Conduct POLICY NUMBER: 2-04 EFFECTIVE DATE: 5/3/2004 PAGES: 8 ENABLING ACTIONS: 2004-059; 2006-111; 2021-047 REVISED DATES: 12/17/2012; 3/3/2015; 12/17/2019; 11/2/2021 APPROVED: I. Preamble The legal responsibilities of the Los Gatos Town Council are set forth by applicable state and federal laws. In addition, the Town Council has adopted regulations, including this Code of Conduct Policy, that hold Council Members to standards of conduct above and beyond what is required by law. This Policy is written with the assumption that Council Members, through training, are aware of their legal and ethical responsibilities as elected officials. These expectations of conduct also apply to all members of the Town’s Boards, Committees, and Commissions. II. Form of Government The Town of Los Gatos operates under a Council-Manager form of government as prescribed by Town Code, Section 2.30.305. Accordingly, members of the Council are elected at-large, provide legislative direction, set Town policy, and ultimately answer to the public. The Town Manager serves as the Town’s chief administrative officer and is responsible for directing the day-to-day operations of the Town and implementing policy direction. III. Town Council Roles and Responsibilities The role of the Town Council is to act as a legislative and quasi-judicial body. Through its legislative and policy authority, the Council is responsible for assessing and achieving the community’s desire for its present and future and for establishing policy direction to achieve its desired outcomes. All members of the Town Council, including those who serve as Mayor and Vice Mayor, have equal votes. Members of the Town Council fulfill their role and responsibilities through the relationships they have with each other and the public. Town Council Members should approach their work, each other, and the public in a manner that reflects ethical behavior, honesty and integrity. The commitment of Town Council Members to their work is characterized by open constructive communication, innovation, and creative problem solving. Small Town Service Community Stewardship Future Focus TITLE: Town Council Code of Conduct PAGE: 2 of 9 POLICY NUMBER: 2-04 IV. Mayoral and Vice Mayoral Selection Process Per Town Municipal Code, Section 2.20.035, the selection of the Mayor and Vice Mayor occurs annually at a special meeting in December by majority vote of the Town Council. The Mayor and Vice Mayor serve at the pleasure of the Town Council and may be replaced by a majority vote of the Council. V. Mayoral and Vice Mayoral Roles, Responsibilities, Relationships The following outlines some of the key roles, responsibilities, and relationships as they relate to the positions of Mayor and Vice Mayor: Mayor A. The Mayor is the presiding officer of the Town Council. In this capacity, the Mayor is responsible for developing Council agendas in cooperation with the Town Manager and leading Council meetings. B. The Mayor recommends various standing committee appointments to the Council for approval.1 This will be done at a Council meeting in December of each year. When making committee recommendations, the Mayor should attempt to balance shared responsibilities and opportunities among Council Members. The Mayor may also appoint citizens to committees not established by Town ordinance or resolution as s/he deems appropriate. C. The title of Mayor carries with it the responsibility of communicating with the Town Council, Town Manager, and members of the public, and the media regarding decisions made by a majority of the Town Council. In this capacity, the The Mayor serves as the Town “spokesperson” representing also represents the Council atin official and ceremonial occasions. D. As the official Town spokesperson, tThe Mayor performs special duties consistent with the Mayoral office, including, but not limited to: signing of documents on behalf of the Town, issuing proclamations, serving as the official voting delegate for various municipal advocacy groups, and delivering the State of the Town Address at his or her discretion.2 The Town Council will determine any additional authority or duties that the Mayor shall perform. E. Special duties consistent with the Mayoral office may be delegated to the Vice Mayor or any other member of the Town Council. F. In the event that one or more members of a Town Board, Commission, or Committee acts in a manner contrary to approved Board/Commission policies and procedures, the Mayor may counsel those members about the rules set forth in the Town Commissioner Handbook.3 1 Council Agenda Format and Rules Policy 2 Council Commendation and Proclamation Policy 3 Resolution 1999-167 TITLE: Town Council Code of Conduct PAGE: 3 of 9 POLICY NUMBER: 2-04 Vice Mayor A. In the Mayor’s absence, the Vice Mayor shall perform the formal duties of the Mayor.4 B. When the Vice Mayor performs the duties of the Mayor in his/her absence, the Vice Mayor also carries the responsibility of communicating with the Town Manager, Town Council, and members of the public. VI. Council Conduct in Public Meetings To ensure the highest standards of respect and integrity during public meetings, Council Members should: A. Use formal titles. The Council should refer to one another formally during Council meetings such as Mayor, Vice Mayor or Council Member or Mr., Mrs., or Ms., followed by the individual’s last name. B. Practice civility and decorum in discussions and debate. Difficult questions, tough challenges to a particular point of view, and criticism of ideas and information are legitimate elements of free democracy in action. During public discussions, Council Members should be respectful of others and diverse opinions and allow for the debate of issues. C. Honor the role of the presiding officer in maintaining order and equity. Respect the Mayor/Chair's efforts to focus discussion on current agenda items. D. Council decisions should be reserved until all applicable information has been presented. E. Conduct during public hearings. During public testimony, Council Members should refrain from engaging the speaker in dialogue. Speakers at public meetings will be asked to provide their full name and to state whether they are a resident of the Town of Los Gatos. This information is optional but not required. For purposes of clarification, Council Members may ask the speaker questions. Council comment and discussion should commence upon the conclusion of all public testimony VII. Maintaining Civility at Council Meetings The public is welcome to participate at Town Council meetings and the Mayor should remind the public of the Town’s expectations for civility in order for the business of the Town to be completed efficiently and effectively. These expectations include and are not limited to: A. For the benefit of the entire community, the Town of Los Gatos asks that all speakers follow the Town’s meeting guidelines by treating everyone with respect and dignity. This is done by following meeting guidelines set forth in State law, in the Town Code, and on the cover sheet of the Council agenda. B. The Town embraces diversity and strongly condemns hate speech and offensive, hateful language or racial intolerance of any kind at Council Meetings. 4 Council Agenda Format and Rules Policy TITLE: Town Council Code of Conduct PAGE: 4 of 9 POLICY NUMBER: 2-04 C. Town Council and staff are well aware of the public’s right to disagree with their professional opinion on various Town issues. However, anti-social behavior, slander, hatred, and bigotry statements are completely unacceptable and will not be tolerated in any way, shape or form at Town Council meetings. D. All public comments at the Town Council meeting must pertain to items within the subject matter jurisdiction of the Town and shall not contain slanderous statements, hatred, and bigotry against non-public officials. E. The Town will go through the following steps if a disturbance results from a member of the public not following these rules: 1. If participating remotely, Town staff may mute the individual with an explanation for the record of why muting occurred consistent with this Policy. 2. If participating in-person, the Mayor may call a recess for violation of this Policy, resulting in the immediate cessation of the audio and video recording and the Council exiting the Chamber. Staff will determine if the individual should be removed or if all members of the public should leave depending on the extent of the disturbance. In the event that all public members exit, only the press would be allowed back in the meeting. Once the individual(s) leave, the Council would return to the Chamber and the Mayor would resume the meeting. 3. Persons disrupting a Council meeting may be cited for violation of the California Penal Code Section 403. VIII. Legal Requirements The Town Council operates under a series of laws that regulate its operations as well as the conduct of its members. The Town Attorney serves as the Town’s legal officer and is available to advise the Council on these matters. A. Training Biannual training in the following areas shall be provided by staff to Council Members: 1. The Ralph M. Brown Act 2. Town / CA State Law on Conflict of Interest (AB 1234) 3. Government Section 1090 4. Incompatible Offices 5. The Fair Political Practices Commission Forms 6. Bias 7. Town / CA State Law on Harassment (SB 1343) B. Procurement Unless authorized by the Town Council, Council Members shall not become involved in administrative processes for acquiring goods and services. C. Land Use Applications TITLE: Town Council Code of Conduct PAGE: 5 of 9 POLICY NUMBER: 2-04 The merits of an application shall only be evaluated on information included in the public record. Council Members shall disclose ex parte communication and any information obtained outside of the public record that may influence his/her decision on a matter pending before the Town Council. Council disclosure shall occur after the Public Hearing section of the agenda, and before Council deliberations. D. Code of Conduct Policy Newly elected Council Members are strongly encouraged to sign a statement affirming they have read and understand the Town of Los Gatos Council Code of Conduct Policy. E. Non-Profit Organizations Council Members may not sit on boards of directors of non-profit organizations which receive funding or in-kind contributions from the Town, unless the role serves a legitimate Town purpose, such as the League of California Cities, and the participation is approved by the full Council. IX. Council Participation in Boards, Commissions and Committees, and Reporting Requirements There are several committees that Town Council Members have been appointed to or have an interest in, including but not limited to: Town Council standing and ad hoc committees, Town boards and commissions, regional boards and commissions, and community-generated committees. Primary Council representatives should update the Council about board, commission, and committee activities. When serving as the primary Council representative on any board, commission, or committee, Council Members should periodically provide updated reports to the Council during the “Council Matters” opportunity on the Council meeting agenda. Recommended actions by Council Committees should be reported to the Council. When serving on a Council Committee, whether standing or ad hoc, all work undertaken by the Committee must be directed by the Council, and all recommended actions of a Council Committee shall be reported to the Council. X. Council Relationship with Town Staff The Town Council has adopted a Council-Manager form of government. The Town Manager’s powers and duties are outlined in the Town Code, Section 2.30.295. Council Conduct and Communication with Town Staff To enhance its working relationship with staff, Council should be mindful of the support and resources needed to accomplish Council goals. When communicating and working with staff, Council should follow these guidelines: TITLE: Town Council Code of Conduct PAGE: 6 of 9 POLICY NUMBER: 2-04 A. Council Members should treat staff as professionals. Clear, honest communication that respects the abilities, experience, and dignity of each individual is expected. As with Council colleagues, practice civility and decorum in all interactions with Town staff. B. Council Members should direct questions about policy, budget, or professional opinion to the Town Manager, Town Attorney or Department Directors. Council Members can direct questions and inquiries to any staff for information that is readily available to the general public or easily retrievable by staff. C. The Town Manager and staff are responsible for implementing Town policy and/or Council action. The processing of Council policy and decisions takes place with the Town Manager and staff. Council should not direct policy/program administrative functions and implementation; rather it should provide policy guidance to the Town Manager. D. Council Members should attempt to communicate questions, corrections, and/or clarifications about reports requiring official action to staff prior to Council meetings. Early feedback will enable staff to address Council questions and incorporate minor corrections or changes to a Council report, resulting in a more efficient Council meeting discussion; however, this does not preclude Council Members from asking questions at Council Meetings. E. Council Members should not direct the Town Manager to initiate any action, change a course of action, or prepare any report without the approval of Council. The Town Manager’s responsibility is to advise on resources available and required for a particular course of action as it relates to the direction of the majority of the Council. F. Council Members should not attend department staff meetings unless requested by the Town Manager. G. All Council Members should have the same information with which to make decisions. Information requested by one Council Member will be shared with all members of the Council. H. Concerns related to the behavior or work of a Town employee should be directed to the Town Manager. Council Members should not reprimand employees. I. Per California Government Code, Sections 3201-3209, Council Members should not solicit financial contributions from Town staff or use promises or threats regarding future employment. Although Town staff may, as private citizens with constitutional rights, support political candidates, such activities cannot take place during work hours, at the workplace, or in uniform. XI. Council Communication with the Public and other Council Members The Public has a reasonable expectation that it may engage its Council Members on matters of community concern. In response, Council Members may express a preliminary opinion on general issues or policies that are in the development phaseor projects. Any such preliminary statement shall not constitute a indicate that a decision has been reached before the public hearing prejudgment or create a presumption of bias on any issue or a project quasi- adjudicatory decision such as a land use approval. In addition, Council Members may from time to time express opinions regarding broad policy matters which may be in conflict with currently TITLE: Town Council Code of Conduct PAGE: 7 of 9 POLICY NUMBER: 2-04 adopted Council policies or explain an individual vote. Such statements are permissible if clearly characterized as personal opinion or policy change objectives rather than the opinion of the full Town Council. XII. Enforcement A. Purpose The Council Code of Conduct Policy establishes guiding principles for appropriate conduct and behavior and sets forth the expectations of Council Members. The purpose of the policy language is to establish a process and procedure that: 1. Allows the public, Town Council, and Town employees to report Code of Conduct policy violations or other misconduct. 2. Provides guidelines to evaluate Code of Conduct policy violations or other misconduct and implement appropriate disciplinary action when necessary. B. Procedures 1. Reporting of Complaints The following section outlines the process for reporting Council Member Code of Conduct Policy violations or other misconduct: a. Complaints made by members of the public, the Town Manager, and Town Attorney should be reported to the Mayor. If a complaint involves the Mayor, it should be reported to the Vice Mayor. b. Complaints made by Council Members should be reported to the Town Manager or Town Attorney to adhere to Brown Act requirements. c. Complaints made by Town employees should be reported to the Town Manager, who will direct them to the Mayor or Vice Mayor. 2. Evaluation of Complaints Alleging Violations Upon report of a written complaint, the Town Manager and Town Attorney will join the Mayor or Vice Mayor as an evaluation committee to determine the validity of the complaint and, if appropriate, an initial course of action as discussed below. If the Town Manager or Town Attorney is the complainant, the longest serving uninvolved Council Member will replace the Town Manager or Town Attorney on the evaluation committee. Within seventy-two (72) hours of receipt of the complaint by the Mayor or Vice Mayor, the Council Member in question shall be notified of the reported complaint by the Mayor or his/her designee. The notification shall include a copy of the written complaint and supporting documentation, if any, the identity of the complainant and nature of the complaint. TITLE: Town Council Code of Conduct PAGE: 8 of 9 POLICY NUMBER: 2-04 3. Unsubstantiated or Minor Violations If the majority of the Committee agrees that the reported violation is without substance, no further action will be taken. If the reported violation is deemed valid but minor in nature, the Mayor or Vice Mayor shall counsel and, if appropriate, admonish the Council Member privately to resolve the matter. Admonishment is considered to be a reproof or warning directed to a Council Member about a particular type of behavior that violates Town policy. 4. Allegations of Major Violations If the reported violation is considered to be serious in nature, the matter shall be referred to outside legal counsel selected by the Committee for the purpose of conducting an initial interview with the subject Council Member. The outside counsel shall report his/her initial findings back to the Committee. If the Committee then determines that an investigation is warranted, the Committee shall direct the outside legal counsel to conduct an investigation. The investigation process would include, but is not limited to, the ascertainment of facts relevant to the complaint through interviews and the examination of any documented materials. 5. Report of Findings At the conclusion of the investigation, outside legal counsel shall report back to the Committee in writing. The report shall either (1) recommend that the Council Member be exonerated based on a finding that the investigation did not reveal evidence of a serious violation of the Code of Conduct, or (2) recommend disciplinary proceedings based on findings that one or more provisions of the Code of Conduct or other Town policies have been violated. In the latter event, the report shall specify the provisions violated along with the facts and evidence supporting each finding. The Committee shall review the report and its recommendations. If the consensus of the Committee is to accept the report and recommendations, the Committee shall implement the recommendations. Where the recommendation is exoneration, no further action shall be taken. Where the recommendation is to initiate disciplinary proceedings, the matter shall be referred to the Council. Where there is no consensus of the Committee regarding the recommendations, the matter shall be referred to the Council. The subject Council Member shall be notified in writing of the Committee’s decision within 72 hours. Where the decision is to refer the matter to the Council, a copy of the full report, including documents relied on by the investigator shall be provided with the notification, and a copy of both shall be provided to the whole Council. TITLE: Town Council Code of Conduct PAGE: 9 of 9 POLICY NUMBER: 2-04 6. Proceedings Investigative findings and recommended proceedings and disciplinary action that are brought forward to Council as a result of a significant policy violation shall be considered at a public hearing. The public hearing should be set far enough in advance to allow the Council Member in question reasonably sufficient time to prepare a response. Investigative findings shall be presented to the Town Council at a public hearing. The rules of evidence do not apply to the public hearing. It shall not be conducted as an adversarial proceeding. C. Disciplinary Action 1. Considerations in Determining Disciplinary Action Disciplinary action may be imposed by Council upon Council Members who have violated the Council Code of Conduct Policy. Disciplinary action or sanctions are considered when a serious violation of Town policy has occurred by a Council Member. In determining the type of sanction imposed, the following factors may be considered: a. Nature of the violation b. Prior violations by the same individual c. Other factors which bear upon the seriousness of the violation 2. Types of Sanctions At the discretion of the Council, sanctions may be imposed for violating the Code of Conduct or engaging in other misconduct. These actions may be applied individually or in combination. They include, but are not limited to: a. Public Admonishment – A reproof or warning directed to a Council Member about a particular type of behavior that violates Town policy. b. Revocation of Special Privileges – A revocation of a Council Member’s Council Committee assignments, including standing and ad hoc committees, regional boards and commissions, and community-generated board/committee appointments. Other revocations may include temporary suspension of official travel, conference participation, and ceremonial titles. c. Censure – A formal statement or resolution by the Council officially reprimanding a Council Member. APPROVED AS TO FORM: __________ Gabrielle Whelan, Town Attorney