BOARD AGENDA MEMORANDUM
Government Code § 84308 Applies: Yes ☐ No ☒
(If “YES” Complete Attachment A - Gov. Code § 84308)
SUBJECT:
Title
Review and Approve Process to Determine Whether Censure is Appropriate.
End
RECOMMENDATION:
Recommendation
A. Review proposed process to determine whether Censure is appropriate;
B. Provide input and make revisions as Board finds necessary; and
C. Approve Hearing Process to be used for Items 2.4 and 2.5.
Body
SUMMARY:
Since this is the first time the Board is conducting hearings to consider censuring a Board Member in recent history, the intent of this item is to allow the Board to transparently review the proposed Board Censure Hearing process, provide input, make revisions if necessary, and approve for use in the Censure Hearings scheduled on this agenda.
The general process for Censure Hearings is set forth in Governance Process Section 6.10.5 which holds as follows:
If a separate Board public hearing is required, it must be scheduled far enough in advance to provide the Board member subject to the charges adequate time to prepare a defense, and that Board member shall be given the opportunity to make an opening and closing statement and to question his or her accusers. The Board member subject to the charges may be represented and may have the representative speak or question on his/her behalf. The Chair or Vice Chair, if the Chair is the subject of the charges, shall preside at the public hearing. The rules of evidence shall not apply to the hearing of the matter, which is not a formal adversarial proceeding. If the District Counsel has assisted Board members in the investigation, independent legal counsel shall provide legal advice to the Board during the hearing of the matter.
As noted above, the Board Chair shall preside at the public hearing. Although the formal rules of evidence do not apply to the hearing, any questions posed during the hearing must be germane to the misconduct at issue in the hearing. The Board Chair presides over the hearing and, subject to Governance Process 12.1.5.3 (Appealing Ruling of the Chair), shall make all final determinations on the relevance or propriety of any statements, arguments, or questions made or posed during the hearing.
The Board member subject to the charges (Director Eisenberg) may be represented and have her representative speak or question on her behalf.
Based upon the general requirements of Governance Process 6.10.5, the following more detailed process is recommended for use at the two hearings:
PROPOSED PUBLIC HEARING PROCESS
1. The Board Chair opens the hearing.
2. The Board Chair explains the order of events for the hearing.
3. The Board Chair provides a high-level review of prior Board action and associated background.
4. The Board Member(s) who have filed a request for censure may make a brief statement of up to five (5) minutes (total) explaining why they believe censure is appropriate.
5. The Board Member accused of misconduct, or her designated representative, will be given an opportunity to make an opening statement of up to five minutes relative to the specific charges being considered.
6. The Board Member accused of misconduct, or her designated representative, will be given an opportunity to present a defense for a reasonable time subject to the discretion of the Board Chair, including any questioning of her accusers. Responses to questions will count towards any time limits.
7. Members of the public who wish to address the Board on the specific agenda item will be given three (3) minutes to address the Board.
8. The Board Member accused of misconduct, or her designated representative, will be given an opportunity to make a closing statement of up to five (5) minutes.
9. The Board Chair will close the public hearing.
BOARD DELIBERATION FOLLOWING HEARING
1. The Board may have discussion of potential actions to take in response to the accused Board member’s misconduct - Admonition, Sanction and Censure.
2. If the Board’s action is to Censure the accused Board Member, the action requires the adoption of a resolution making findings with respect to the specific charges, based on substantial evidence and must be approved by two-thirds vote of the Board. (Per Board Governance Policy GP-6.10.6.)
3. If the Board’s action is to administer an Admonition or Sanction, the motion must be approved by a majority of the Board. (Per Board Governance Policy GP-6.8.4 and GP-6.9.4.)
4. If the Board wishes to take any other action with respect to the misconduct at issue, then, unless a higher vote is required by ordinance, resolution, state, or federal law, such action must be approved by the affirmative vote of at least four Members of the Board. (Per Board Governance Policy GP-12.2.)
ENVIRONMENTAL JUSTICE AND EQUITY IMPACT:
There are no environmental justice and equity impacts associated with this item.
FINANCIAL IMPACT:
There is no financial impact associated with this item.
CEQA:
The recommended action does not constitute a project under CEQA because it does not have the potential for resulting in direct or reasonably foreseeable indirect physical change in the environment.
ATTACHMENTS:
None.
UNCLASSIFIED MANAGER:
Manager
Michele King, 408-630-2711