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Resolution No. 2012-123RESOLUTION NO. 2012-123 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 WHEREAS, the provisions of Chapter 2 of the City Charter of the City of Vernon state that: "The city shall have full power and authority to adopt, make, exercise and enforce all legislation, laws, and regulations and to take all actions in respect to municipal affairs, without limitation, which may lawfully be adopted, made, exercised, taken or enforced under the Constitution of the State of California subject only to such limitations as may be provided by this Charter"; and WHEREAS, Chapter 3.4 of the City Charter of the City of Vernon provides that "the city council shall be the final judge of election results and the qualifications of its members"; and WHEREAS, on June 18, 2012, an election contest of the June 5, 2012 Special Municipal Election was filed with the City Council of the City of Vernon invoking its jurisdiction pursuant to Chapter 3.4 of the City Charter of the City of Vernon; and WHEREAS, on June 27, 2012, the City Council of the City of Vernon adopted Ordinance No. 1197 establishing procedures for election contests filed pursuant to Chapter 3.4 of the City Charter of the City of Vernon (codified as Article XII of Chapter 2 of the Vernon Municipal Code); and WHEREAS, Section 2..90-5 of the Vernon Municipal Code provides that, "The City Council of the City of Vernon may adopt by resolution additional procedures for election contests which shall provide for fair, transparent, and expedited adjudication consistent with due process and equal protection of the law;" and WHEREAS, on July 10, 2012, the City Council of the City of Vernon adopted Resolution No. 2012-116, establishing additional procedures for election contests filed pursuant to Chapter 3.4 of the City Charter in order to provide for fair, transparent, and expedited adjudication consistent with due process and equal protection of the law; and WHEREAS, Section 7(a) of Resolution No. 2012-116 states that the hearing on an election contest "shall be conducted by a neutral hearing officer appointed by majority vote of the City Council members present. The hearing officer shall be (1) a member of the State Bar of California for a minimum of fifteen years and (2) a former member of the federal or state judiciary or a former federal or state public prosecutor. The hearing officer shall be entitled to payment by the City for his or her services, including reasonable expenses. The hearing officer shall not be an officer or employee of the city and shall not have any other relationship with the city"; and WHEREAS, Section 7(c) of Resolution No. 2012-116 states: Upon appointment by the City Council, the hearing officer shall deliver to the City Clerk a statement disclosing any actual or possible conflicts of interest with the parties to the election contest, other matters which could reasonably be perceived as affecting the hearing officer's ability to be impartial, and such other matters as may be required by the City. The City Clerk promptly shall serve a copy of the disclosure statement on the parties to the election contest or on their designated counsel of record" and WHEREAS, Section 7(d) of Resolution No. 2012-116 states: "A party may challenge the continued service of the hearing officer for cause. If, however, a challenge is raised more than five days after service of the -2- disclosure statement required in subsection (c), the burden is on the challenger to show that then challenge is based upon information that was not available to the parties. The City Council, upon the advice of the City Attorney shall make the final determination of any challenge. Such determination shall take into account the materiality of the fats and any prejudice to the parties to the election contest. The decision will be final"; and WHEREAS, on July 11, 2012 the election contest filed on June 18, 2012 was re -filed in the form prescribed by Resolution No. 2012-116; and WHEREAS, the City Council of the City of Vernon desires to ensure a fair, transparent, and expedited adjudication of election contests filed with the City Council pursuant to Chapter 3.4 of the City Charter, the City.Council of the City of Vernon has determined to adopt a guidelines and required disclosures concerning the neutrality of hearing officers for election contests. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby adopts the attached Conflict of Interest Guidelines and Disclosure Form for Neutral Hearing Officers attached hereto as Exhibit A and incorporated herein by this reference. - 3 - SECTION 3: The City Clerk of.the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk of the City of Vernon shall cause this resolution and the City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 17t° day of July, 2012. l Name: William J. Davis Title: I%/ Mayor Pro-Tem - 4 - STATE OF CALIFORNIA ) ) ss COUNTY.OF LOS ANGELES ) I, Willard G. Yamaguchi, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 2012-123, was duly passed, approved and adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, July 17, 2012, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this 0 day of July, 2012, at Vernon, California. (SEAL) k - 5 - EXHIBIT A Exhibit A Conflict of Interest Guidelines and Disclosure Form for Neutral Hearing Officers THE HEARING OFFICER MUST ENSURE THAT HE OR SHE HAS NO KNOWN CONFLICT OF INTEREST REGARDING THE ELECTION CONTEST, AND SHOULD ENDEAVOR TO AVOID ANY APPEARANCE OF A CONFLICT OF INTEREST. Pursuant to Resolution No. 2012-116, section 7(c) the hearing officer must promptly disclose, or cause to be disclosed any and all actual or potential conflict of interest or relationship or other information, of which the hearing officer is aware, that reasonably could lead a party to the election contest ("Party" or "Parties") to question the hearing officer's impartiality. The hearing officer should accept appointment to hear an election contest only where the hearing officer believes it can be undertaken without an actual or apparent conflict of interest. Section 7(c) of the resolution provides: Upon appointment by the City Council, the hearing officer shall deliver to the City Clerk a statement disclosing any actual or possible conflicts of interest with the parties to the election contest, other matters which could reasonably be perceived as affecting the hearing officer's ability to be impartial, and such other matters as may be required by the City. The City Clerk promptly shall serve a copy of the disclosure statement on the parties to the election contest or on their designated counsel of record. Upon full disclosure, a Party or the Parties may waive an actual or potential conflict of interest. If the conflict of interest casts serious doubt on the integrity of the process, the hearing officer should withdraw, notwithstanding receipt of a full waiver. The hearing officer's disclosure obligations continue throughout the course of the election contest and require the hearing officer to disclose, at any stage of the election contest, any such interest or relationship that may arise, or that is recalled or discovered. Disclosure must be made to all Parties. . The hearing officer should remain impartial throughout the course of the election contest. Impartiality means freedom from favoritism either by word or action. The hearing officer should be aware of and avoid the potential for bias based on the Parties' backgrounds, personal attributes or conduct during the hearing, or based on the hearing officer's pre-existing knowledge of or opinion about the merits of the dispute being arbitrated. A hearing officer should not have a social or professional relationship with a Party or counsel to a Party to an election contest. If the hearing officer becomes incapable of maintaining impartiality, the hearing officer should withdraw. The hearing officer should perform duties diligently and conclude the hearing as Exhibit A to RESOLUTION ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 promptly as the circumstances reasonably permit. The hearing officer should be courteous to the Parties, to their representatives and to the witnesses, and should encourage similar conduct by all participants in the proceedings. The hearing officer should make all reasonable efforts to prevent the Parties, their representatives, or other participants from engaging in delaying tactics, harassment of Parties or other participants, or other abuse or disruption of the process. Section 7(e) of Resolution No. 2012-116 provides: No party to the election contest or any member of the City Council shall have any ex parte communication with the hearing officer. The hearing officer should not discuss an election contest with any Party in the absence of every other Party, except that if a Party fails to appear at a hearing after having been given due notice, the hearing officer may discuss the case with any Party who is present. Whenever the hearing officer receives a written communication concerning the election contest from one Party that has not already been sent to each Party, the hearing officer should do so. As used in the Minimum Required Disclosures 5, 6, 7, 8, 9 & io, below, "you" includes members of your immediate family (husband, children, mother, father, and siblings), your current employer, and current business partners. MINIMUM REQUIRED DISCLOSURES 1. Have. you been a member of the State Bar of California for a minimum of 15 years? ❑ Yes. ❑ No 2. Are you currently or have you ever been a member of the federal or state judiciary? ❑ Yes. Please state the court and your tenure. ❑ No 3. Are you or have you ever been a federal or state public prosecutor? ❑ Yes. Please state the jurisdiction and your tenure. ❑ No 4. Please state your employment for the io years immediately preceding your appointment as hearing officer. Use a separate sheet of paper if necessary. Exhibit A to RESOLUTION ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 5. Do you have any actual or potential conflict of interest or relationship, or other information, of which you are aware, that reasonably could lead a party to the election contest to question your impartiality? ❑ Yes. If so, please describe in detail on a separate page. ❑ No 6. Do you have any existing relationship or dealings, besides being nominated for appointment as a hearing officer for the election contest, with the City of Vernon or its elected officials, employees or administrative officers? ❑ Yes. If so, please describe in detail on a separate page. ❑ No 7. Have you had any relationship or dealings with the City of Vernon or its elected officials, employees or administrative officers, within the ten (1o) years immediately preceding your nomination for appointment as a hearing officer? ❑ Yes. If so, please describe in detail on a separate page. ❑ No 8. Do you now, or have you at any time, had any relationship or dealings with the parties to the election contest? ❑ Yes. If so, please describe in detail on a separate page. ❑ No 9. Do you now, or have you at anytime, had any relationship or dealings with the counsel of record for the parties to the election contest? ❑ Yes. If so, please describe in detail on a separate page. ❑ No io. Do you now, or have you at any time, had any relationship or dealings with the voters whose eligibility to vote in City of Vernon elections is challenged in the election contest? ❑ Yes. If so, please describe in detail on a separate page. ❑ No Exhibit A to RESOLUTION ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 CITY CLERK'S OFFICE INTEROFFICE MEMORANDUM DATE: July 23, 2012 TO: Mark Whitworth, City Administrator/Fire Chief FROM: Willard Yamaguchi, City Clem RE: Resolution No. 2012-123 — A Resolution of the City Council of the City of Vernon Adopting Conflict of Interest Guidelines and Disclosure Form for Neutral Hearing Officers for Election Contests Filed With the City Council Pursuant to Vernon City Charter Section 3.4 Transmitted herewith is a copy of Resolution No. 2012-123 referenced above, which was approved by City Council on July 17, 2012. Thank you. WY:dj Attachment c: Ana Barcia Resolution No. 2012-123 STAFF REPORT CITY ADMINISTRATION DATE: July 12, 2012 TO: Honorable Mayor Pro Tem and City Council FROM: Mark C. Whitworth, City Administrator M wl yl RE: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 Background The Vernon City Charter section 3.4 provides in relevant part: "The city council shall be the final judge of election results and the qualifications of its members." This provision empowers the City Council of the City of Vernon to receive and adjudicate election contests. People v. Metzker (1874) 47 Cal. 524; Carter v. Superior Court (1902) 138 Cal. 150; McGregor v. Bd. of Trustees of Town of Burlingame (1911) 159 Cal. 441. On June 18, 2012, an election contest of the June 5, 2012 Special Municipal Election was filed with the City Council of the City of Vernon invoking its jurisdiction pursuant to Chapter 3.4 of the City Charter of the City of Vernon. On June 27, 2012, the City Council adopted Ordinance No. 1197 ("AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VERNON AMENDING CHAPTER 2, ARTICLE XII OF THE VERNON CITY CODE ESTABLISHING PROCEDURES FOR ELECTION CONTESTS") to amend the Municipal Code of the City of Vernon to establish procedures by which the City Council would exercise its authority under Vernon City Charter Section 3.4. Ordinance No. 1197 provides that, "The City Council of the City of Vernon may adopt by resolution additional procedures for election contests which shall provide for fair, transparent, and expedited adjudication consistent with due process and equal protection of the law." The City Council adopted that resolution, Resolution No. 2012-116 ("A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON ADOPTING RULES AND PROCEDURES TO GOVERN ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4"), at its Special Meeting on July 10, 2012. Section 7(a)-(c) of Resolution No. 2012-116 provides: (a) The election contest hearing provided for in Section 7 of this Resolution shall be conducted by a neutral hearing officer appointed by majority vote of the City Council members present. The hearing officer shall be (1) a member of the State Bar of California for a minimum of fifteen years and (2) a former member of the federal or state judiciary or a former federal or state public prosecutor. The hearing officer shall be entitled to. payment by the City for his or her services, including reasonable expenses. The hearing officer shall not be an officer or employee of the city and shall not have any other relationship with the city. (b) Within seven days of the filing of a contest statement the City Council shall meet to appoint a hearing officer. (c) Upon appointment by the City Council, the hearing officer shall deliver to the City Clerk a statement disclosing any actual or possible conflicts of interest with the parties to the election contest, other matters which could reasonably be perceived as affecting the hearing officer's ability to be impartial, and such other matters as may be required by the City. The City Clerk promptly shall serve a copy of the disclosure statement on the parties to the election contest or on their designated counsel of record. The attached resolution provides for the adoption of conflict of interest guidelines and required disclosures for hearing officers appointed as provided in Resolution No. 2012-116. Contents of the Proposed Resolution The operative provisions of the resolution are the following: Section 1. This section confirms the accuracy of the recitals supporting the resolution. Section 2. This section adopts by reference a document entitled, "Conflict of Interest Guidelines and Disclosure Form for Neutral Hearing Officers", Exhibit A. Exhibit A provides the guidelines for the hearing officer to ensure that he or she has no known conflict of interest regarding the election contest, and to endeavor to avoid any appearance of a conflict of interest; allows for the parties to an election contest to waive an actual or potential conflict of interest; imposes a continuing disclosure obligation on the hearing officer as to matters that could reasonably create a conflict of interest that arise after the hearing officer's appointment; requires the prompt, diligent, and courteous conduct of the contest hearing; prohibits ex parte communications and sets forth the disclosures required by the hearing officer. Authorization for City Council Action The provisions of Chapter 2 of the City Charter of the City of Vernon state that: "The city shall have full power and authority to adopt, make, exercise and enforce all legislation, laws, and regulations and to take all actions in respect to municipal affairs, without limitation, which may lawfully be adopted, made, exercised, taken or enforced under the Constitution of the State of California subject only to such limitations as may be provided by this Charter." Chapter 5.3 of the City Charter of the City of Vernon provides, in part: "The city council is authorized to adopt by ordinance procedures governing municipal elections," which it has done with respect to election contests through the adoption Ordinance No. 1197. Ordinance No. 1197 expressly provides, "The City Council of the City of Vernon may adopt by resolution additional procedures for election contests which shall provide for fair, transparent, and expedited adjudication consistent with due process and equal protection of the law." Resolution No. 2012-116, Section 7 requires the City Council to appoint a neutral hearing officer and for disclosures by the hearing officer of matters set'forth in the resolution and as may be prescribed by the City Council. Recommendation It is recommended that the City Council adopt the proposed resolution ("A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTSXILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 ").