Council Subcommittee

MINUTES OF THE GILBERT TOWN COUNCIL SUBCOMMITTEE ON CODE OF ETHICS, IN SPECIAL MEETING OF WEDNESDAY, AUGUST 16, 2023 AT 1:00 P.M., GILBERT MUNICIPAL CENTER I, COMMUNITY ROOM 202, 50 E CIVIC CENTER DRIVE, GILBERT, ARIZONA COUNCIL PRESENT: Subcommittee Chair Scott Anderson, Vice Mayor Kathy Tilque and Councilmember Jim Torgeson COUNCIL ABSENT: None STAFF PRESENT: Town Attorney Chris Payne, Town Clerk Chaveli Herrera, Town Clerk Specialist and Council Aide Monica D'Ortenzio CALL TO ORDER Chair Anderson called the meeting to order at 1:04 p.m. ROLL CALL Town Clerk Herrera called roll and declared a quorum present. AGENDA ITEMS 1. Consider approval of the minutes of the Subcommittee on Code of Ethics Meeting of May 17, 2023. A MOTION was made by Vice Mayor Tilque, seconded by Councilmember Torgeson, to approve the minutes of the Subcommittee on Code of Ethics Meeting of May 17, 2023. Motion carried 3-0. 2. Discussion on Code of Ethics Policy and process. 1 Chair Anderson stated they were reconventioning to discuss additional items in the Code of Ethics. He allowed Bill Spence, Gilbert resident to address concerns. Bill Spence, Gilbert resident thanked the Subcommittee for allowing him the time to express his concerns. He questioned if the policy worked when multiple members of the Council were involved in the complaint and if it supported the idea of frivolous complaints. He discussed accountability and stated he had some apprehension with mediation and had concerns about time limitations to submit a complaint with no apparent waiver of time process identified. He discussed the 30-day window and time required for public records requests fulfillment. He also addressed sanctions and establishing a supermajority of available council to vote on sanctions as opposed to 5 councilmembers. He talked about clarifying who could vote for sanctions and recommended an ethics complaint be sponsored by a Councilmember. He discussed public transparency and accountability and allowing the community to be heard within the process. He recommended that Councilmembers did nothing more than give legitimacy to a complaint and then send it to the Town Clerk and Town Attorney moving forward which would slow down the speed at which the complaint was processed. Vice Mayor Tilque spoke of the perspective that the goal of the ethics policy was to remove politics and get to the actual issue to try and resolve it between the complainant and the councilmember involved. She understood it was not a perfect process and that there may be complaints filed that would show flaws within the system, but stated they needed to see how the process worked before they could determine if it was a good idea and to let people get in a room and settle, so that it would not need to go further. Resident Spence stated the time limitations were rigid and did not allow for flexibility. He stated it allowed the bureaucratic process to say, “No” to the public instead of a process that would allow a flexible time requirement for people that do not meet the current requirement due to extenuating circumstances such as 9-week JustFOIA (public records) request and he also addressed the supermajority vote of sanctions. He said there were municipalities doing hybrid practices and suggested doing something similar. 2 Chair Anderson stated he thought they had already built-in flexibility for that timeframe. Vice Mayor Tilque stated there was flexibility in the timing of the sit-down meeting schedule if for example, someone was out of the country. Town Clerk Herrera clarified the policy and stated that when a complaint was filed with the Town Clerk within 30 days of the alleged conduct they added notwithstanding the foregoing; if within two weeks of the date of the alleged misconduct, a complainant may file a public record request on the subject matter then the complainant has one week after the fulfillment of the request. She said if it took 9 weeks for a public records request to be fulfilled, they would have the 10th week to file to complaint. Resident Spence further discussed the waiver of time after 30 days and allowing a Councilmember to decide to move forward or not. Councilmember Torgeson stated he agreed with Vice Mayor Tilque, and they should allow the process to run in order to see if there was an issue, before second-guessing something that had not been instituted yet. He added that the purpose of the process was to make people speak and try to resolve issues. Resident Spence said he was not questioning the process of mediation but his concern regarding the verbosity of the time to be able to complete it. He discussed his recent filing of an ethics complaint earlier then he would have liked due to the length of time needed to fulfill his open public records requests. He also elaborated on the issue with a supermajority. Councilmember Torgeson spoke in disagreement with the idea of supermajority and addressed an example in which all but two Councilmembers were named in an ethics complaint. Resident Spence stated that was not the platform to litigate a complaint and looked to the chairman for direction on discussing how to move forward. Town Attorney Payne provided clarification on the new policy process regarding mediation and the votes required for sanctions. Resident Spece reiterated the difficulty in establishing a quorum in those circumstances. He discussed extenuating circumstances in cases when there were 4 or more councilmembers subject to an ethics complaint. There was further discussion on the intent of a five-member vote for sanctions, supermajority and quorum. 3 Vice Mayor Tilque stated that she felt that would be an extreme situation and should that come forward, and they got to the penalty phase of a complaint, they would depend on the mediator to figure out how they would solve it and have someone other than them make a decision. She asked Town Attorney Payne to explain the difference between requiring a supermajority and five, and what would that mean legally for them in that situation. Town Attorney Payne stated the current ethics code was still five so that did not change. He said the concept behind the five was to make sure it was not political. He added that if an outside investigative report found a Councilmember or two Councilmembers had violated the code of ethics it would be on an agenda automatically under the new code. He said those Councilmembers if they voted no sanctions would have to answer the public because there was an outside investigative report that found ethical violations but if they chose not to proceed they would have to face the public in that scenario and explain why they did not vote to sanction someone where there was a clear violation. Resident Spence said he thought the process was significantly better than they had before and he appreciated the work and the clarity of the writing that was in those two areas. Councilmember Torgeson asked for clarification on the items for discussion of the Subcommittee and Chair Anderson clarified that the item addressed by resident Spence was in addition to concerns on conflict of interest. Vice Mayor Tilque summarized the discussion, stating they were being asked by the public to consider if they wanted to change language from the affirmative vote of five members to provide or supermajority of those eligible and the 30-day limit. She said she believed that was based on what they spoke about allowing two weeks after having the JustFOIA request profiled to take care of it. Chair Anderson stated that as far as conflict of interest, the research that Town Attorney Payne provided showed all other cities all referenced sending it to the Attorney General. Town Attorney Payne discussed surveying the ten largest cities and every one of them followed what was required in State Law except for City of Tucson which had a charter. He 4 further explained some of the additional details from other cities and towns. Vice Mayor Tilque discussed additional types of conflict of interest, some being remote and indirect conflicts and stated they should also look at those and said there was already a process in place for direct conflicts. Town Attorney Payne discussed actual conflict of interest and Vice Mayor Tilque questioned how they could define other types regarding perceived conflicts of interest and asked for clearly defined areas. There was discussion on conflict of interest rules for Town employees and Town Attorney Payne stated the rules for elected officials and employees were different and elaborated on personnel rules. Councilmember Torgeson questioned if the same rules should apply in order to be transparent as possible. He discussed the comments by Councilmember Bongiovanni regarding concern in a Councilmember having more than a 10 % or 20% stake in a company and their inability to be a contractor or subcontractor with the Town. He added additional concerns in a sitting councilmember being allowed to be listed on contract being considered by staff. Vice Mayor Tilque asked for clarification on whether the 10% owner was related to a contractor or subcontractor. Councilmember Torgeson confirmed it would be related to a contractor and noted that subcontractors would be different, and he discussed the visualization of impropriety. Chair Anderson asked if and how that change would impact voting. Councilmember Torgeson responded that he felt the change would not affect voting. Vice Mayor Tilque asked if a financial conflict of interest was the only concern expressed and stated that there were other types of conflicts. Councilmember Torgeson believed there were no other concerns regarding conflict of interest other than those related to contracting and subcontracting with the Town. There was discussion on clarifying conflict of interest concerns and Town Attorney Payne stated he could schedule it as a council study session to hear from other Councilmembers, but it could not be part of a Subcommittee meeting. Vice Mayor Tilque discussed additional definitions of conflict of interest from the Arizona League of Cities and Towns and recommended bringing that information forward. Councilmember Torgeson spoke in support of an additional Study Session for added clarification. Chair Anderson spoke about concerns related to conflict of interest and Board 5 and Commission members because many of them do business with the Town. Town Clerk Herrera clarified based on the minutes from that meeting, that the discussion from the previous meeting was related to a 20% ownership rather than 10%. Chair Anderson expressed concern in doing anything more than what was required in statute and potentially running afoul. Town Attorney Payne stated that generally state laws provide the minimum standard for conduct and the Town in that case could increase that standard and, it would be an ethics violation if they added some additional ethical constraints. Additionally, he added that if someone believed a Board or Commission member violated the conflict of interest law it would not be considered an ethical violation in the new policy. He confirmed anything added above what was required by state law would be an ethics violation and further elaborated. Vice Mayor Tilque recommended looking into the issue further as a Subcommittee before taking it back to Council through a Study Session. She talked about the importance of doing the homework first. She asked if this topic needed to the in the Code of Ethics or Code of Conduct. Town Attorney Payne stated it could be in either and talked about it being a prohibition for Councilmembers and said he could look into what other municipalities were doing and bring information back. Councilmember Torgeson spoke to removing undue influence upon staff and Chair Anderson he wanted to keep it clean and simple and not overcomplicate it. Town Attorney Payne discussed the consideration of whether or not to add subcontractors and extend the provisions to spouses, relatives and others. Chair Anderon stated the new policy was scheduled to be implemented on August 21st and if anything was filed, would they approach it the way they agreed on by starting with mediation. Town Attorney Payne replied, stating they could address those concerns and if the Council decided they wanted to add additional rules for conflicts, it would be a new section in the Code of Ethics or the Code of Conduct. Vice Mayor Tilque stated that for the next meeting, they should have the League definition, the list they developed on the dais, and some thoughts about where it should be housed. 6 Town Attorney Payne said that the Council needed to understand that there were two different areas they were talking about, conflict of interest and being transparent with the public. He talked about the creation of an ethical rule that applied to Councilmembers and possibly their spouses and talked about refraining from voting. He talked about the possibility of creating a new disclosure rather than a new code and talked about the disclosure being publicly available. Councilmember Torgeson recommended they could announce that a contract was awarded to be transparent and make it a policy that they announce any business being done by Councilmembers or their spouse with the town at the appropriate meeting where they were awarded a contract. He said if they were disclosing it then people could not say they were hiding something. 3. Discussion on next steps. Town Attorney Payne would gather information from other municipalities and Vice Mayor Tilque would be looking at the conflict of interest definitions offered by the League. 4. Action Items a) Set dates for future subcommittee meetings Next meeting set for August 24, 2023 at 2:00 p.m. b) other action items as assigned None. ADJOURN Subcommittee Chair Anderson adjourned the meeting at 2:09 p.m. 7  ATTEST: ___________________________ ___________________________________ Scott Anderson, Chair Chaveli Herrera, Town Clerk CERTIFICATION I hereby certify that the foregoing minutes are a true and correct copy of the minutes of the special meeting of the Subcommittee on Code of Ethics of the Town of Gilbert held on the 16th of August, 2023. I further certify that the meeting was duly called and held and that a quorum was present. Dated this ____ day of ____________________2023. ___________________________________ Chaveli Herrera, Town Clerk 8