New policy requires complete disclosure of all business
conversations with councilmen
Gilroy – The behind-the-scenes efforts of developers and disgruntled neighbors to influence government must be disclosed in public meetings under a new ethics policy.
The Ex Parte Communications Policy, approved Monday night by City Council in a 4-2 vote, requires elected and appointed officials to disclose their conversations with so-called lobbyists on a range of potentially controversial city business. The policy also calls for council members and planning commissioners to disclose visits to the site of a proposed development, and it prohibits council members from speaking on certain topics at meetings of lower boards and commissions.
The city’s top governing body pushed through the policy over the objections of two councilmen, who said it threatens to discourage interaction with constituents.
“It’s not really changing anything that’s not our policy now,” said Councilman Dion Bracco, who voted in favor of the policy. “In our (written) council norms we have that we’ll report back to the council if we’ve met with the applicant. This is basically reinforcing what we’re already doing. It’s good for our council because it puts the cards on the table and says, ‘This is the standard we’re going to live up to.’ This doesn’t handcuff anyone.”
Councilmen Russ Valiquette and Craig Gartman, the dissenting votes, said the policy leaves too much room for guess work on the part of officials and constituents.
“It wasn’t that I was voting against the policy in principle,” Valiquette said. “The wording was too generic. … There were a lot of loose ends, and now it’s left up to interpretation.”
The opposing councilmen focused their complaints on the lack of details concerning the extent of disclosure. Do council members have to itemize the name of every person that approaches them on matters subject to the policy? When disclosing conversations, is it enough to rely on generic references such as “a group of neighbors” or “the developer”?
City Attorney Andy Faber said general references, rather than itemizing each person’s name, would meet the spirit of the policy. In a typical meeting, the disclosure period would come immediately after staff presentations on a given topic, just before the public comment period begins.
Council members were also unclear on the range of city business subject to the disclosure policy. It applies to a narrow slice of the workload that goes before council members and other officials, though the cases often involve highly contentious issues: Neighbors fighting to keep a three-story house off their block; a restaurateur hoping to keep a bar open beyond the neighborhood’s 8pm closing time; a furniture store appealing a decision to revoke its operating license.
Such matters would trigger the disclosure requirements of the policy, which governs “quasi-judicial” proceedings where boards and commissions hear evidence before issuing a decision. The policy would not apply to legislative matters. Recent council actions in the legislative arena include the rezoning of farmland for development, regulating alcohol consumption in city parks, or imposing stiffer penalties for illegal fireworks.
The policy, Faber said, was inspired by the increasing attention state courts have given to violations of due process.
“If there’s some fact that’s disclosed that is germane, then due process requires that it be known to everybody,” Faber said. “One councilman should not be making judgments based upon facts that are not known to others.”
Councilman Craig Gartman called the third guideline of the policy – that council members should not speak at lower boards and commissions during review of “quasi-judicial” matters – a violation of civil liberties.
“I think it’s ludicrous,” he said. “I think we still have our rights of free speech.”
Faber said the clause, like much of the policy, aims to prevent a city body such as council from appearing prejudiced on a matter before it comes up for official review. Such due process issues can form the basis of a lawsuit against the city, Faber said.
The new policy does not include punitive measures if a board member or commissioner fails to properly disclose conversations.
