File #: 19-0494    Name: Attorney communications with members of BoS and other decisionmakers acting in an adjudicative capacity
Type: General Agenda Item Status: Passed - County Counsel Office
File created: 6/17/2019 In control: Board of Supervisors
On agenda: 6/25/2019 Final action: 6/25/2019
Title: a. Introduce, waive reading, and set July 9, 2019, at 1:30 p.m. as the date and time to consider adoption of an ordinance of the County of Monterey, State of California, adding Section 2.04.355 to the County Code related to attorney communications with members of the Board of Supervisors and other decisionmakers acting in an adjudicative capacity.
Attachments: 1. Board Report, 2. Ordinance.final. 2.04.355 re Ex parte Communications and State Bar rule 3.5.061719, 3. Rule_3.5, 4. 85. Completed Board Order

Title

a. Introduce, waive reading, and set July 9, 2019, at 1:30 p.m. as the date and time to consider adoption of an ordinance of the County of Monterey, State of California, adding Section 2.04.355 to the County Code related to attorney communications with members of the Board of Supervisors and other decisionmakers acting in an adjudicative capacity.

Report

RECOMMENDATION:

It is recommended that the Board of Supervisors:

a.                     Introduce, waive reading, and set July 9, 2019, at 1:30 p.m. as the date and time to consider adoption of an ordinance of the County of Monterey, State of California, adding Section 2.04.355 to the County Code related to attorney communications with members of the Board of Supervisors and other decisionmakers acting in an adjudicative capacity; and

 

SUMMARY/DISCUSSION:

Historically, lawyers have been prohibited from ex parte contact with judicial officers involving a contested matter.  Ex Parte contact means contact with the judicial officer for the benefit of one side/party where the other side/party is excluded.  New Rule 3.5 of the California Rules of Professional Conduct for lawyers expanded the ex parte contact prohibition to include contact with members of administrative bodies hearing matters in an adjudicative capacity.  Land use and other entitlement hearings are known as quasi-judicial or adjudicative.  Such entitlement matters come before the Board of Supervisors, the Planning Commission and the Zoning Administrator, and may include other bodies. 

 

Rule 3.5 does not apply if the contact is permitted by law.  County attorneys advising the Board, Planning Commission or the Zoning Administrator provide such service pursuant to law. Rule 3.5 also allows the local administrative body to adopt rules to permit ex parte contacts.  Non-lawyers advocating for clients or a project are not bound by the Rules of Professional Conduct.  

 

Chair Phillips submitted Referral 2019.02 requesting County Counsel draft rules of procedure so that licensed attorneys have the same access to decisionmakers as non-attorneys.  Attached is a proposed ordinance exempting lawyers from Rule 3.5, including any County staff or Board members who are licensed attorneys.  In addition, although County Counsel attorneys advising the County and Board members are permitted by law to provide legal advice to Board members outside of hearings, we have included an exemption for these attorneys out of an abundance of caution.

 

We are pleased to make any changes directed by the Board. 

 

OTHER AGENCY INVOLVEMENT:

No other County department or agency has been involved.

 

FINANCING:

The financial impact of this item is limited to publishing the ordinance.

 

BOARD OF SUPERVISORS STRATEGIC INITIATIVES:

This ordinance assists in providing clear rules of procedure in the administration of County business.

 

Mark a check to the related Board of Supervisors Strategic Initiatives

 

__Economic Development

X Administration

__Health & Human Services

__Infrastructure

__Public Safety

 

 

Prepared by:

 

________________________________________________

Charles J. McKee, County Counsel                                                               Date

 

 

Approved by:

 

________________________________________________

Charles J. McKee, County Counsel                                                               Date

 

Attachments:

Board Report

Ordinance Section 2.04.355

California Rule of Professional Conduct 3.5