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HomeMy WebLinkAbout10-01-2007MINUTES City of Milton Board of Ethics Regular Meeting Monday, October 1 , 2007, 6:oo PM This summary is provided a s a co nvenience and se rvice to th e public, media, and staff It is not the intent to transcribe proceedings verbatim. A ny reproduction of this summary must include this notice. Public co mments are noted and hea rd by th e Board, but not quoted. This is an official record of th e City of Milton Board of Ethics M eeting proceedings. Official Meetings are audio recorded. Board Members Present: Board Member arriving late : Not Present: City Staff: Agenda: Clint Johnson, Susan Campbell, Carol Lane, Todd Ashley, John McCrory John McMillan Oate arrival 6:08 PM) Joe Whitley Jeanette Marchiafava, City Clerk Mark Scott, City Attorney I. Call to Order -Chairman Clint Johnson II. Approval of the Meeting Agenda III. Approval of the August 6 , 2007 meeting minutes. IV. Discussion and potential hearing on ethics complaint filed by John McMillan. V. Old Business VI. New Business VII. Next Meeting Date VIII. Adjourn MEETING CALLED TO ORDER Chair Clint Johnson: • Called the Board of Ethics meeting to order for October 1, 2007 at 6:oo PM. • Called the first Agenda item, and asked if there were any additional items, discussion or changes to the Agenda. APPROVAL OF THE MEETING AGENDA • Chair Clint Johnson called for a motion to approve the Agenda. Motion and Vote: Board Member John McCrory moved to approve the meeting agenda. Board Member Carol Lane seconded Page 1 of 1 Lane Exhibit 18 Regular Meeting Board of Ethics Monday, October 1, 2007 the motion. Vote: 5-0. (Board Member John McMillan was not present for the vote.) Motion carried. APPROVAL OF THE MINlITES • Chair Clint Johnson called for a motion to approve the August 6, 2007 meeting minutes. DISCUSSION: Board Member Carol Lane • Asked if July 25, 2007 minutes had been approved and was advised those minutes were approved on August 6, 2007. Motion and Vote: Vice Chair Susan Campbell moved to approve the August 6 , 2007 meeting minutes. Board Member Todd Ashley seconded the motion. Vote: 5-0. (Board Member John McMillan was not present for the vote.) Motion carried. Chair Clint Johnson • Called next agenda item, complaint filed by John McMillan. • Asked Carol Lane to recuse herself. • John McMillan had not yet arrived. • John McMillan will be recused as well when he arrives. • Had problem with complainant not being present. • Called for Carol Lane or her counsel Myles Eastwood to speak. Myles Eastwood (Attorney for Carol Lane): • Written response was filed to complaint. • Stated John McMillan was just arriving and could speak first. Chair Clint Johnson: • Advised John McMillan he was recused from hearing. • Asked if he wished to speak regarding his complaint. John McMillan (Complainant) 14255 Thompson Road, Milton, GA: • Complaint stands as he has stated. • Had been concerned about disproportionate share of BHA appointees to certain City boards. • At City Hall he checked the campaign contributions of Mayor Lockwood and Councilmember Zahner-Bailey. • Checked the Comment Cards to review who spoke, etc. • Saw Carol Lane had spoken that night at the zoning meeting and had checked she had not contributed to any candidate. • Recalled seeing she had contributed to Councilmember Zahner-Bailey's Page 2 of 2 Regular Meeting Board of Ethics Monday, October 1, 2007 campaign. • Surprised she would do this. • She was very tough at prior hearing regarding Councilmemb er s O'Brien and Lu sk. • She attempted to hold them to an unreasonable standard. • All ethics board members have to be held to a higher standard or accountability. • When discovered she had checked the box "no ," he had hoped it was an accident. • Shocked she would do so knowing as much as she does about the procedures . • He then put together a complaint and filed it. • Ms . Lane felt she had to hold people to a higher standard and h e believes that applies to all of us on the ethics board. • Not right for her not to check the appropriate box. Chair Clint Johnson: • Substance of complaint was Ms . Lane filed an improper document by checking the wrong box on comment card. • She had gi ven a donation to Councilmember Julie Zahner-Bailey in excess of $250.00. • Complaint bas ed on suppression of information by checking "no " box that should have been known to the City Council. City Attorney Mark Scott: • Addressed the complaint in more detail. • Actual allegation is Ms. Lane violated Section n(f) of the Ethics Ordinance. • Read from Section n(f). • Known to the public as well. Chair Clint Johnson: • Two parts to this matter (1) did she check the "no " box and it appears from the public comment card she did, and (2) did she violate Section n(f) of the City of Milton's Ethic Ordinance? • We are currently not at the legal hearing stage. • We can take this course if desired after evi dence is heard. • We may not get to a hearing. • Can proceed wi thout having a formal hearing. City Attorney Mark Scott: • Suggested Chairman make this a probable cause hearing. • Can make decision after that to go further if desired. Page 3 of 3 Regular Meeting Board of Ethics Monday, October 1, 2007 Attorney Myles Eastwood: • Representing Carol Lane. • It is undisputed she checked "no" on the Public Comment card at the July 12 , 2007 meeting. • Error was brought to her attention through the ethics complaint. • Immediately on the following Tuesday she filed a corrected card checking the correct box. • Board has to decide if Ordinance as previously drafted did include a requirement of a deliberate or intentional act. • Referenced what he cited in their Memorandum regarding previous case of Councilmembers O'Brien and Lusk. • Intent was required for it to be a violation. • No intent was found so case was dismissed. • This is our main argument as stated in our Section A of the Memorandum. • There was no intent to suppress or mislead. • Provided the 11-page sworn statement of Ms. Lane taken by the City Attorney. • Summarized it in their Memorandum. • She had been checking no in all the previous cases not involving zoning . • She believed that meant non-applicable. • Was in hearing at July 12th hearing and did not finish filling out card. • She inadvertently checked no. • She corrected it. • She knew she had given money before. • Ordinance says "suppress." • This is public information readily available to public. • Does not see any evidence that shows any intent to mislead or deliberately suppress she was a contributor to one member of the Council. • That particular matter failed on a 7-0 vote. • Did not intend to mislead the Council. • Current Ordinance had already been revised and been reviewed by this Board to insert the word "intentional" in numerous places, including u(f). • John McMillan after complaint was filed told Milton Herald this was his attempt to keep these people accountable. • Mr. McMillan is referring to Ms. Lane as a member of the Birmingham Hopewell Alliance (BHa). • Impermissible reason to file an ethics complaint. • Free speech issues. • The point is what Ms. Lane 's intent was. • There position is she simply made a mistake. • City Attorney pointed out that the disclosure was based on a state statute. • State statute says in order to be a misdemeanor it has to be a knowing violation. • Our position is she was careless, but not deliberate or intentional. Page 4 of 4 Regular Meeting Board of Ethics Monday, October 1, 2007 • Feel for these reasons Board should find a lack of probable cause and dismiss the complaint and proceed with new Ethics Code. • Ms. Lane has already provided testimony in her affidavit under oath so she will not be speaking tonight. DISCUSSION: Susan Campbell: • Ethics Board has a duty to expose any violation they may see. • Whether intentional or unintentional it was a careless mistake. • Clarification of what comment cards said and if all were checked no. • Ms. Lane has spoken before Council at most all of the sessions. • Even being in a hurry, she should know how to fill them out. • How many times had she filled out cards? • How were the boxes checked? Attorney Myles Eastwood: • Part of the cards were missing from the city clerk's office. • This was first zoning matter. • First cards were not required to be checked because they were not zoning matters. • Do not know if all the other cards are currently available. • Search had been conducted. Todd Ashley: • Stated Ms. Lane had been at many Council meetings when cards were required, but this was first involving zoning. • How many people spoke for or against Trinity Land Group or on behalf of BHA on that night. • Were other cards mistakenly checked? City Attorney Mark Scott: • Advised he had copies of the July 12th cards. • Regarding zoning there is a number of RZ07-003 and believes that would be the correct one. • There was Ms. Lane and another individual that spoke in opposition. • Two spoke against and two in favor of it. Attorney Myles Eastwood: • People required to fill out card is applicant and opponents. • People in support do not have to fill out cards regardless of their contributions. City Attorney Mark Scott: Page 5 of 5 Regular Meeting Board of Ethics Monday, October 1, 2007 • Concurred and stated that was based on the state statute. John McCrory: • Understands cards must be filled out for public comment for zoning cases. • He asked must they be filled out if people want to address Council during regular sessions not concerning zoning cases? City Attorney Mark Scott: • Stated they did. • Do not have to check the bottom. • Same card -wording not changed on cards. • Reviewed 14 cards that Carol Lane filled out from February through July. • She checked "no" on a total of six cards. • Only one was she required to say "yes " or "no" on. • She also left it unmarked on another 7 cards. John McCrory: • Clarified that one she checked "no" on was the one she was required to fill out because it was a zoning matter. Todd Ashley: • Inquired as to what personal or political interest was served by her not checking the box. Chair Clint Johnson: • Asked either the complainant, the defendant or Mr. Eastwood if it was desired to proceed with a hearing or continue as they were. Attorney Myles Eastwood: • Decide whether Board has probable cause. • Would like to proceed as economically feasible as possible. • Question is whether Board feels the next step is required. Chair Clint Johnson: • Polled the Board on decision to go on to formal hearing. BOARD DISCUSSION: John McCrory: • Believes there is probable cause for a hearing. • Based on information Mr. McMillan presented in his complaint and Mr. Eastwood's defense of Ms. Lane and information presented to Board. • Not a good defense to say she was in a hurry and did not understand it. • Persons serving in a very important position as the Ethics Board need to be held to a higher standard. Page 6 of 6 Regular Meeting Board of Ethics Monday, October 1 , 2007 • Ms . Lane knew what was on the card and what her responsibility was . Susan Campbell: • Referenced Section 17(1)(3). • Believes there needs to be a hearing. • Read from Section 17(1)(3). • Read Section 1(b). • Read Sections 1(d). • Read Section 1(d)(2). • Because of these items and reading of the statement, she believes Ms. Lane had sufficient opportunity to know the Ethics Ordinance. • When you are ve ry familiar with the public comment cards , just sayi ng you made a mistake is not sufficient. • Need to move fo rward with the hearing . Todd Ashley: • Asked if discussion is to determine if there is probable cause or if we will proceed to a probable cause hearing. Chairman Clint Johnson: • Stated a probable cause hearing at this point. Todd Ashley: • Stated he believed there needed to be a hearing. Attorney Myles Eastwood: • Asked if Chair would rule as to if another ethics member made the same error if they should be participating in the probable cause hearing. • Had a public comment card where one of the board members checked "no " and it was not a rezoning hearing. Chairman Clint Johnson: • Asked who the board member was. Attorney Myles Eastwood: • Susan Campbell. Todd Ashley: • Asked to be provided a copy. Susan Campbell: • Asked if she needed to recuse herself. City Attorney Mark Scott: Page 7 of 7 Regular Meeting Board of Ethics Monday, October 1 , 2007 • My question would be if Ms . Campbell made a contribution exceeding $250 .00 to any Councilmember. Susan Campbell: • Stated she had not. Chairman Clint Johnson: • Then that was the correct box to check. Attorney Myles Eastwood: • Stated it was not as it was not a zoning hearing. Todd Ashley: • If voluntary to check a box on meetings that are non-zoning, then it is not an error if she does not gi ve money. Attorney Myles Eastwood: • The issue is should box be checked? Todd Ashley: • She is not similarly situated to Ms. Lane , s o it is not the same. John McCrory: • Stated he understood what Mr . Eastwood was saying. • Since it was not a zoning case, why is it not a violation for her to check "no?" • Just stating she did not give any donation greater than $250 .00. • Realized box to be checked says only for zoning cases. Attorney Myles Eastwood: • That is the point he is trying to make. • The card could be misunderstood by a number of people in a number of situations. • Demonstrated b y another person on the board b y checking it when it did not need to be checked. Todd Ashley: • Stated he did not understand trying to make that point. • Under Mr. Eastwood's standard, Ms. Lane would have 5 more complaints then if she checked 6 cards and was only required to check no on one of them. Attorney Myles Eastwood: • If you are going to be criticizing a board member for not underst a nding a card and inadvertently filling it out incorrectly. • Number of other comment cards not involvi ng rezoning where people checked the "yes" or "no" box when there was no need for it. Page 8 of 8 Regular Meeting Board of Ethics Monday, October 1, 2007 • She just did not understand how to check the box. Chair Clint Johnson: • Fully understand because there is an implication that box has to be checked. • Does not say before the box check what may apply. • It should say, if zoning hearing. • Not clearly defined before checking box. • Al so agree that other 6 "no 's " are not improper statements. • We are not trying other 6 "no's." • Agree form is not clear enough. • Question for Ci ty Clerk Jeanette Marchiafava. • When cards are handed out, is an explanation gi ven to public. City Clerk Jeanette Marchiafava: • Mo st of time they are just picked up wh en they come in. • If it is a zoning application, we usually follo w-up to make s ure they check "yes " or "no" on the box. • There are zoning rules read into the record. Chair Clint Johnson: • If they attended entire zoning meeting, they would hear it being read into the record? City Clerk Jeanette Marchiafava: • Ye s, that is in the zoning rules . Chair Clint Johnson: • Stated there was a majority decision of the Board to go ahead wi th hearing . • Would like to proceed with the hearing. • Would like to call Mr . McMillan again if he had any additional information for Board as complainant. John McMillan: • One of the things done in the past by the City Clerk at the City Council meeting is to make a specific reference to the card and advis e the public to check one of the appropriate boxes . • He h a s spoken at several zoning matters in the past as Ms. Lan e has. • This is part of the protocol that has to be follo wed. • That is a reason he was surprised that she checked "no ." • He is certain she should have known better. • Ms. Marchiafava has on several instances advised the crowd to check appropriate boxes. • Restated belief that Ethics Board members should be h eld to a higher standard. Page 9 of 9 Regular Meeting Board of Ethics Monday, October 1, 2007 • Believes Ms. Lane has represented this in the past. • That is the reason for his complaint. Chair Clint Johnson: • Asked Mr. Eastman if he was ready to proceed with hearing tonight. Attorney Myles Eastwood: • We have a tape of the hearing that shows there was no discussion at that meeting regarding a discussion of the card. • If that was the normal practice that Ms. Marchiafava followed, it was not done done at the July 12th meeting. • Would be happy to provide a copy of that tape for you. • Not expecting to have a formal hearing tonight. • Asked if Board would want to hear the tape. Chair Clint Johnson: • Will take Mr. Eastwood's word there was no discussion at the July 12th meeting regarding instructions on the comment cards. Attorney Myles Eastwood: • Do not dispute that this was done at other meetings. • Was not done for the July 12th meeting. Todd Ashley: • Accepted Mr. Eastwood's representation that it was not there. City Attorney Mark Scott: • Asked Myles Eastwood for clarification about script. • Are you saying that the script regarding the zoning rules that the clerk reads at every meeting was not read on July 12th? Attorney Myles Eastwood: • The script about the zoning for whatever reason was omitted from the minutes that night. John McCrory: • Stated if you say script was not there, then I believe that. Susan Campbell: • Ready to proceed. Chair Clint Johnson: • It appears to be unanimous on the board that they do not need to hear the tape and will accept his word that it was not read into the record that night. Page 10 of 10 Regular Meeting Board of Ethics Monday, October 1, 2007 Attorney Miles Eastwood: • Requested a short break to review the comment cards. Chair Clint Johnson: • Stated they would take a break and reconvene at 7: 10 pm. Reconvene: Meeting reconvened at 7: 15 pm. Chair Clint Johnson: • Stated Board Member Joe Whitley was absent. • Ms. Lane and Mr. McMillan are recused. • Called Myles Eastwood who is representing Carol Lane. Attorney Myles Eastwood: • Stated in reviewing large number of comment cards, he would like an opportunity to analyze them and use some for exhibits and presentation. • Believed if there was to be a next step it would be at another time. • Large number of public comment cards need to be addressed. • Requested that formal hearing date be set in the future to be set b y the Board. • Need to review cards and get witnesses lined up. • Would need about a working week advance notice. DISCUSSION ABOUT AVAILABLE MEETING DATES Chair Clint Johnson: • October 22nd would be next date. • Will try to schedule. City Attorney Mark Scott: • Joe Whitley has not indicated October 22nd as an available date. Chair Clint Johnson: • We will have to work out the scheduling. • If Mr. Eastwood can be ready by the 22nd, we will work out scheduling after that. • Will start working tomorrow on scheduling. • May have to wait until after the Thanksgiving holiday to do it. Attorney Myles Eastwood: • Stated that was okay with him. • Would need about a week's advance notice. Chair Clint Johnson: • Something was recently brought to his attention. • Glad to give everyone a copy. Page 11 of u Regular Meeting Board of Ethics Monday, October 1, 2007 • Referring to part of minutes of the special called meeting for July 12th, there is a note from the Clerk indicating that there was an error that night that accidentally shut the recorder off. City Attorney Mark Scott: • For clarity, that recording error occurred from 40 minutes and 27 seconds in the meeting to 51 minutes and 45 seconds into the meeting. • That occurred during the public comment section on that zoning item, Trinity Land Group. Chair Clint Johnson: • It was actually after that statement should have been made, right? City Attorney Mark Scott: • From what we can tell, it was probably during that time. • There was no public comment before that section and there were four individuals that spoke against the item during that time. • This is an assumption. If that was read, and we do not know if that was, it would have been during that time. Attorney Miles Eastwood: • Question about number of speakers and number of cards. City Attorney Mark Scott: • Minutes say there were 4 individual's public comments not recorded. • There were 3 in support, Karen Sanders, Roberta Wilbur and William J. St. Aubin, and one opposing, Carol Lane (4 people). • After that there was Rose Prestianni that we have a card for who spoke. • The first portion of her comments were not recorded and it picks up during her statement. • Total of 4 who were not recorded, 3 in favor, 1 Ms. Lane and opposition. Chair Clint Johnson: • Provided Miles Eastwood a copy of the pertinent portion of the July 12th City Council minutes. • Do we have a motion to continue this matter? John McCrory: • I will make a motion. Motion and Vote: John McCrory moved to continue this matter to a date and time to be set within the next ten days. The meeting will be not earlier than the 22nd of October and not later than December 31st. Motion seconded by Todd Ashley. Vote: 4-0. Motion carried. Page 12 of 12 Regular Meeting Board of Ethics Monday, October 1, 2007 Chair Clint Johnson: • Called Board Members Carol Lane and John McMillan back to join Boardat 7:16 pm. • Called the next agenda item, Old Business. • There was none. • Called for new business. New Business: City Attorney Mark Scott: • Stated that he would like to get everyone back on track to look at the By-Laws and get them passed. Chair Clint Johnson: • Would like to have a meeting just to talk about the By-Laws. • Try to perhaps meet in next couple of weeks at a work session. City Attorney Mark Scott: • Everyone has a copy of the By-Laws. • He asked that they start reviewing. • A lot needs to be done. • Make sure language matches Ordinance. • Will review because there were other changes before Ordinance was amended. • See how it matches what was actually passed. • Stated for record that he informed the Council all the hard work that was done by the Board member in achieving the work that was done. • A lot got accomplished. • Mentioned that the comment card was from Fulton County. • Have already changed the speech that the City Clerk reads at zoning hearings. • He does not want anybody to commit a misdemeanor. • Does not want even an accusation to be made against anyone. • Modified zoning speech to say if you have not disclosed prior to five days before Planning Commission meeting. • This is what Legislature chose so we have to enforce. • Added that the City Attorney advises if you did not make that disclosure more than s days before the Planning Commission meeting that someone else express your sentiments if you did make contribution in the amount of more than $250.00 to a Councilmember. • This can chill some spontaneous speech. Chair Clint Johnson: • Next meeting date will be the work session. Page 13 of 13 . 1 Regular Meeting Board of Ethics Monday, October 1, 2007 • He will notify everyone. • Also be notified of hearing date after he checks availability. ADJOURNMENT Chair Clint Johnson: • Called for a motion to adjourn. Motion and Vote: Board Member Todd Ashley moved to adjourn the meeting. Vice Chair Susan Campbell seconded the motion. There was no further discussion. Vote 6-o. Motion unanimously carried to adjourn meeting. The meeting adjourned at 7:30 PM. Date Approved: ________ _ Francesca Ivie City Clerk's office Clint Johnson, Chairman Board of Ethics Page 14 of 14 .. Regular Meeting Board of Ethics Monday, October 1 , 2007 ~CHMENT Page 15 of 15