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HomeMy WebLinkAbout03-06-19 City Commission Packet Materials - WS1. City Commission Annual Ethics TrainingCommission Memorandum REPORT TO: Bozeman City Commission FROM: Andrea Surratt, City Manager SUBJECT: Ethics Training for the City Commission MEETING DATE: Wednesday, March 6, 2019 AGENDA ITEM TYPE: Work Session RECOMMENDATION: Receive the 2019 Annual Ethics Training SUGGESTED MOTION: None BACKGROUND: All City staff and elected officials, as well as appointed volunteer board and commission members must receive annual ethics training. This special meeting will meet the requirements for City Commission members and serve as a chance to have dialogue on several areas of ethics procedures as well as possible ethics scenarios. City staff will facilitate the following discussions: 1. Review any highlights from the training session with the City Commission in early 2018 • Packet Materials - http://weblink.bozeman.net/WebLink8/0/doc/144841/Electronic.aspx • Video - https://media.avcaptureall.com/session.html?sessionid=975972b5-8fb9-4fe5-aad5- b60f27083747&prefilter=654,3835 2. Participate in discussion from the current Ethics Training module led by staff 3. Quasi-Judicial procedures 4. Commissioners questions/open discussion FISCAL EFFECTS: None Attachment: Ethics Training presentation 1 2018 ETHICS PROGRAM City of Bozeman TRAIN-THE-TRAINER November 29, 2018 2 OVERVIEW • Moving away from an “Ethics Season” time of year • Moving toward a more integrated Ethics Training effort • Equipping staff to facilitate training helps make the material more familiar • Facilitation & Group Discussion is the meeting format we are striving for • We want the conversation to evolve into more frequent day-to-day conversations 3 BASIS • The City of Bozeman Code of Ethics (Charter, Ch.2, Article 3, Division 4) is a best practice for local government in Montana • Montana State Law, Title 2, Chapter 2 Code of Ethics • Purchasing Policy • Employee Handbook 4 WHO Code of Ethics, Sec. 2.03.480./Persons covered. All city officials and employees shall be bound by this division. All officials, including members of the parking commission and library board, and all employees shall be bound by this division. Upon initial employment and annually thereafter each employee, official and member of every board or committee shall verify that such employee, official and board or committee member has not and will not knowingly violate any provision of this division or the rules, standards of conduct or rules of ethics established by state law. 5 CHARTER – CODE OF ETHICS Code of Ethics, Sec. 2.03.460. - Declaration of policy. The proper operation of the city government requires that public officials and employees be independent, impartial, accountable, and responsible; that governmental policies and decisions be made in the proper channels of the governmental structure; that public office and employment not be used for personal gain nor be used to harass, intimidate, or retaliate against citizens and other employees and officials; and that the public have confidence in the integrity of its government. The purpose of this code of ethics is to set forth standards of ethical conduct, to assist public officials and employees in establishing guidelines for their conduct, to foster the development and maintenance of a tradition of responsible, accountable and effective public service, and to prohibit conflict between public duty and private interest. Nothing herein shall be construed to relieve any employee or official of the responsibilities set forth in MCA 2-2-104, 2-2-105, 2-2-121, 2-2-131, and 7-5-4109. Where a provision or interpretation of this division conflicts with a provision of the Montana Code Annotated, the more stringent provision or interpretation that requires a greater level of public disclosure shall apply. 6 ANNUAL TRAINING Code of Ethics, Sec. 2.03.580. - Board of ethics. 14. In coordination with the city attorney, city manager, and other appropriate city personnel, arrange for the conduct of annual training and education, which shall serve as an orientation for new board members and an opportunity for experienced members to explore specific issues in depth. -Attendance at this training shall be made a condition of service as a member of the board, and, before taking office, board members shall commit themselves to attend it. -The city clerk shall forward to the commission annually a list of officials who fail to take the training required under this section and the Charter. The commission may remove an official for failing to take the required training. 7 WHAT TO EXPECT • 18 questions available to you • 13 questions related to staff scenarios (Green slides) • 5 board and commission-focused scenarios (Blue slides) • Notes and Tips • Sign in sheet for documentation of participants • Flip chart for possible future questions or other concerns (putting items in the “Parking Lot”) • GOAL: An hour of discussion to complete the Ethics Training (more questions than time to complete) • The hour will fly by! 8 WHO CAN YOU RELY UPON FOR HELP? • At any time, you can ask your supervisor, HR or the City Attorney when you have questions about this training or about how to advise an employee or board or commission member 9 ACTIVE LEARNING – LEARNING IN PUBLIC • Participants have knowledge that we need to draw out • Trainers need to give feedback • Employees need to give feedback • Trainers need to tell people where to go to get the answers • Participants are sometimes hesitant to begin the conversation • Reaching conclusions will likely lead to more unanswered questions • THAT’S OKAY! 10 WHY FACILITATION? • Equipping staff to facilitate training helps make the material more familiar • Engaging in Conversation HELPS US LEARN • Probing for more information (using questions that begin with Who, What, When, Why, Where, and How) 11 QUESTIONS THAT HELP FACILITATION The benefit of the training is the discussion that happens in the gray areas of each scenario. Become comfortable with these types of questions for effective facilitation of the Ethics Training: Who is involved? What information do we have or not have? When is the occurrence in question? Why might we need to pause and ask the ethics questions to ourselves? Where can we go for help? What are the resources? How can the scenario help us learn? 12 RESOURCES • Code of Ethics (Charter, Ch.2, Article 3, Division 4) • A Copy of the Employee Handbook (encourage your employees to bring their handbook or have several available) • Supervisor, HR, City Attorney • You can request a staff partner (other Trainer) to accompany you with the training • Board of Ethics members may float and attend a few training sessions • City Commission members may participate within their liaison roles 13 HOW • Staff meetings December - March • Board meetings December - March • Increments can vary: 1 full hour, 2 – 30 minute sessions, 3-20 minute sessions, etc. • Sign in sheet for each session of training and who attended- Please DOCUMENT! • 6 make – up meetings (do not automatically send your staff to these without trying to cover in a staff/board/commission meeting) • Trainers lead the discussion • Get employees and board members involved • Make reference to WHY we are doing the 14 training this way 12-17-18 15 Let’s Get Started! 16 WHO CAN YOU RELY UPON FOR HELP? • At any time, you can ask your supervisor, HR or the City Attorney when you have questions about this training or about how to advise an employee or board or commission member 17 Fred goes to an IT conference paid for by the IT department. During a reception at the conference he wins a $100 Amazon gift card, which he uses to purchase an Amazon Alexa for his house. Is this acceptable for Fred to do? ? 1 Employee Scenario 18 Fred goes to an IT conference paid for by the IT department. During a reception at the conference he wins a $100 Amazon gift card, which he uses to purchase an Amazon Alexa for his house. Is this acceptable for Fred to do? Main Issues: random drawing, available to everyone, no obligation Code of Ethics, Section 2.03.540 Gifts, gratuities and favors, F. 2. A prize received upon a random drawing at an event where the official or employee attends in their capacity as an employee or official, the drawing is open to all attendees, and receipt of the prize does not place the official or employee under obligation; 1 Employee Scenario 19 In a meeting with the HR Director, George (the HR Generalist,) is informed that Sally from the Public Works Department will be laid off next month due to a reduction in force. The HR Director asks George to keep it confidential as they have not delivered the news to Sally. Sally’s husband is George’s best friend and George knows that they are in the process of shopping for a new car for Sally. George wants to warn Sally’s husband, but knows that this information is to be kept confidential. He decides to tell Sally’s husband that he’s heard of some layoffs coming at the City and that he’s not sure if it will affect Sally, but advises that they should not purchase a new car at this time. Did George disclose confidential information? ? 2 Employee Scenario 20 In a meeting with the HR Director, George (the HR Generalist,) is informed that Sally from the Public Works Department will be laid off next month due to a reduction in force. The HR Director asks George to keep it confidential as they have not delivered the news to Sally. Sally’s husband is George’s best friend and George knows that they are in the process of shopping for a new car for Sally. George wants to warn Sally’s husband, but knows that this information is to be kept confidential. He decides to tell Sally’s husband that he’s heard of some layoffs coming at the City and that he’s not sure if it will affect Sally, but advises that they should not purchase a new car at this time. Did George disclose confidential information? Main Issues: George is in a position to know confidential information and advises based upon that knowledge to his friend that would know George was in a position to communicate something with authority. Code of Ethics, Section 2.03.530 A. Confidential Information. No official or employee shall, without legal authority, disclose confidential information concerning the personnel, property, government, or affairs of the city. 2 Employee Scenario 21 Jennifer, an employee in the Police Department, is buying a real estate lot. Can she offer to the seller that she would ask coworkers to speed up the process for getting final plat approval through Community Development so that she can save the seller money and look more favorable to the seller? ? 3 Employee Scenario 22 Jennifer, an employee in the Police Department, is buying a real estate lot. Can she offer to the seller that she would ask coworkers to speed up the process for getting final plat approval through Community Development so that she can save the seller money and look more favorable to the seller? Main Issue: using position for improper influence Code of Ethics, Section 2.03.490 E. No official or employee shall, for any reason, use or attempt to use the official or employee’s position to secure any financial interest or personal interest for said official employee, or others. No official or employee shall, for any reason, use or attempt to use the official or employee’s position to improperly influence any other official or employee in the performance of such official or employee’s official duties. 3 Employee Scenario 23 A department purchased a new stereo system for the meeting room facility as the current system was failing. Alice was asked to install the new system and toss the old one. In her spare time Alice likes to rebuild electronics. She asks her supervisor if it is ok for her to take the old system home to rebuild and keep for her personal use. Can Alice’s supervisor approve this request? ? 4 Employee Scenario 24 A department purchased a new stereo system for the meeting room facility as the current system was failing. Alice was asked to install the new system and toss the old one. In her spare time Alice likes to rebuild electronics. She asks her supervisor if it is ok for her to take the old system home to rebuild and keep for her personal use. Can Alice’s supervisor approve this request? 4 Main Issue: was the equipment disposed according to MCA below? Section 2.03.5 of Code of Ethics – Use of City Resources No official or employee shall use, or permit the use of, city-owned vehicles, equipment, material, or city personnel for personal use of the employee or official or anyone else or to be used in any manner prohibited by state statutes or city ordinance. Montana Code Annotated 2017 7-8-4201- Disposal or Lease of Municipal Property - Election (1) Subject to the provisions of subsection (2), the city or town council may sell, dispose of, donate, or lease any property belonging to the city or town. Employee Scenario 25 Should Roger, a City employee in Engineering, attend the annual Christmas party of ACME Engineering, a local firm in the community that will include city officials, customers, and people they work with in attendance if the firm is competing for a large contract, and Roger is on the interview team? ? 5 Employee Scenario 26 Should Roger, a City employee in Engineering, attend the annual Christmas party of ACME Engineering, a local firm in the community that will include city officials, customers, and people they work with in attendance if the firm is competing for a large contract, and Roger is on the interview team? Main Issue: Understanding what signal his presence might represent to the company or how he might be influenced by them Code of Ethics, Section 2.03.490 B. Standards of Conduct Officials and employees shall conduct themselves with propriety, discharge their duties impartially and fairly, and make continuing efforts toward attaining and maintaining high standards of conduct. 5 Employee Scenario 27 Sarah is a Board Liaison. After the Board Meeting the group decided to meet for drinks. Sarah had a glass of wine. Did she do the right thing? ? 6 Employee Scenario 28 Sarah is a Board Liaison. After the Board Meeting the group decided to meet for drinks. Sarah had a glass of wine. Did she do the right thing? Main Issue: Being aware if there is a quorum of the Board present which would make it wrong to have a drink = on duty City of Bozeman Employee Handbook, November 2017: Employees may not be under the influence of or impaired by drugs or alcohol while on duty. 6 Employee Scenario 29 Mick’s friend is a videographer and his department has a small project that needs to be filmed. Can Mick hire his friend for the job? ? 7 Employee Scenario 30 Mick’s friend is a videographer and his department has a small project that needs to be filmed. Can Mick hire his friend for the job? 7 Main Issues: What if Mick is not involved in the hiring? City of Bozeman Purchasing Policy, 7) APPROVAL OF PURCHASES: Two (2) signatures are required to approve the payment for any good or service purchased by the City. The following must appear on each claim submitted to the Accounting Division. Employee Scenario 31 Warren heard through the grapevine a city position may be opening. He thinks he knows the perfect candidate. Is it okay for Warren to contact that person and tell them to get ready to submit a resume? ? 8 Employee Scenario 32 Warren heard through the grapevine a city position may be opening. He thinks he knows the perfect candidate. Is it okay for Warren to contact that person and tell them to get ready to submit a resume? Main Issues: Positions are approved in the annual budget through a public process. They are not confidential. Code of Ethics, Section 2.03.470 Definitions, A.3. “Confidential information” means any information which is not available to the general public and which is obtained only by reason of an official’s or employee’s position. Section 2.03.530 A. Confidential Information. No official or employee shall, without legal authority, disclose confidential information concerning the personnel, property, government, or affairs of the city. 8 Employee Scenario 33 ? Marcus from Vehicle Maintenance shops at O’Reilly’s for supplies for the city frequently and receives a government discount for supplies purchased for the City. While working on his personal vehicle over the weekend he stops by O’Reilly’s to purchase supplies. The clerk recognizes Marcus and automatically applies the discount. Marcus informs the clerk that he is not purchasing these items for the City and that he should not receive the discount. The clerk tells Marcus that it’s “okay” and insists that Marcus accept the discount. The result of the discount is approximately $28 less than what he would have paid. Marcus decides not to argue with the clerk and accepts the discount, nobody will know anyway. Did Marcus violate the City’s ethics policies? 9 Employee Scenario 34 Marcus from Vehicle Maintenance shops at O’Reilly’s for supplies for the city frequently and receives a government discount for supplies purchased for the City. While working on his personal vehicle over the weekend he stops by O’Reilly’s to purchase supplies. The clerk recognizes Marcus and automatically applies the discount. Marcus informs the clerk that he is not purchasing these items for the City and that he should not receive the discount. The clerk tells Marcus that it’s “okay” and insists that Marcus accept the discount. The result of the discount is approximately $28 less than what he would have paid. Marcus decides not to argue with the clerk and accepts the discount, nobody will know anyway. Did Marcus violate the City’s ethics policies? Main Issues: acceptance of something because he is an employee and the clerk recognizes him Code of Ethics, Section 2.03.540 Gifts, gratuities and favors, B. 2. That the person knows or that a reasonable person in that position should know under the circumstances is primarily for the purpose of rewarding the person for official action taken; Charter, Code of Ethics, Sec. 2.03.460… that public office and employment not be used for 9 personal gain… Employee Scenario 35 Molly has been swimming at the city pool for years. She finds out that one of the lifeguards, Jane, that she has built a friendly relationship with over the years, just had her baby. Molly knows that other swimmers would be interested in giving Jane a gift. Molly collects $20 from 9 additional patrons and surprises Jane with a gift card to a baby store in the amount of $200. Jane’s maternity leave ends in one day, but Jane informs Molly she has made the decision not to return to work. Can Jane accept the gift card? If no, could she accept the gift if it was given individually in the $20 increments? ? 10 Employee Scenario 36 Molly has been swimming at the city pool for years. She finds out that one of the lifeguards, Jane, that she has built a friendly relationship with over the years, just had her baby. Molly knows that other swimmers would be interested in giving Jane a gift. Molly collects $20 from 9 additional patrons and surprises Jane with a gift card to a baby store in the amount of $200. Jane’s maternity leave ends in one day, but Jane informs Molly she has made the decision not to return to work. Can Jane accept the gift card? If no, could she accept the gift if it was given individually in the $20 increments? Main Issue: Test of intent of gift Code of Ethics 2.03.540 B. No official or employee shall accept a gift, gratuity, or favor from any person or entity: 1. That would tend improperly to influence a reasonable person in the person's position to depart from the faithful and impartial discharge of the person's public duties; 2. That the person knows or that a reasonable person in that position should know under the circumstances is primarily for the purpose of rewarding the person for official action taken; or 3. Has a value of $100.00 or more for an individual. Section 2.03.540 Gifts, gratuities and favors, F. 1. Items or services provided an employee or official in their private capacity and without relationship to their employment or official position; 10 Employee Scenario 37 Lester made comments to a coworker one day that others overheard which were blatantly sexual harassment. At the urging of his boss who heard about the incident and told Lester that his admission of the incident would enable him to avoid discipline, Lester went to HR. Did the boss act appropriately? ? 11 Employee Scenario 38 Lester made comments to a coworker one day that others overheard which were blatantly sexual harassment. At the urging of his boss (who heard about the incident and told Lester that his admission of the incident would enable him to avoid discipline), Lester went to HR. Did the boss advise appropriately? Main Issue: Sexual harassment is not covered in the Code of Ethics and therefore Section 2.03.590 C.2 does not apply. City of Bozeman Employee Handbook, November 2017, Harassment Complaint Procedure Code of Ethics, Section 2.03.590 C.2 An employee’s…own improper action does not grant the employee immunity from discipline… 11 Employee Scenario 39 ? Sarah goes to an Economic Development conference and sees Jason there who is a consultant who hopes to work with the City on a project but hasn’t yet submitted his proposal. He annoys Sarah because he calls her frequently asking questions He has an extra ticket and invites Sarah to a technical demonstration event valued at $65 with the proceeds going to a local non profit during the conference. Can she accept the invitation? 12 Employee Scenario 40 Sarah goes to an Economic Development conference and sees Jason there who is a consultant who hopes to work with the City on a project but hasn’t yet submitted his proposal. He annoys Sarah because he calls her frequently asking questions. He has an extra ticket and invites Sarah to a technical demonstration event valued at $65 with the proceeds going to a local non profit during the conference. Can she accept the invitation? 12 Employee Scenario Main Issue: Test of intent of gift Code of Ethics 2.03.540 B. No official or employee shall accept a gift, gratuity, or favor from any person or entity: 1. That would tend improperly to influence a reasonable person in the person's position to depart from the faithful and impartial discharge of the person's public duties; 2. That the person knows or that a reasonable person in that position should know under the circumstances is primarily for the purpose of rewarding the person for official action taken; or 3. Has a value of $100.00 or more for an individual. 41 ? Candace works in the Library. She checks out a patron who has library book damage fees on her account. The patron explodes with anger at being accused of returning books that were damaged and claims the Library should not have charged her. Candace is tired of this behavior. She told the patron that she would bring up this situation at the next Library Advisory Board meeting and hoped that the patron would lose her library card. Did Candace cross the line? 13 42 Candace works in the Library. She checks out a patron who has library book damage fees on her account. The patron explodes with anger at being accused of returning books that were damaged and claims the Library should not have charged her. Candace is tired of this behavior. She told the patron that she would bring up this situation at the next Library Board meeting and hoped that the patron would lose her library card. Did Candace cross the line? Main Issues: Where is the line between reporting problems v. customer service v. ethical violations? Code of Ethics, Section 2.03.510 Treatment of the public In their contact with the public, officials and employees must bear in mind their role as public servants. Each member of the public shall be treated courteously, impartially and fairly…refrain from taking any action…that is intended to retaliate…against any member of the public. 13 Employee Scenario 43 WHO CAN YOU RELY UPON FOR HELP? • At any time, you can ask your supervisor, HR or the City Attorney when you have questions about this training or about how to advise an employee or board or commission member 44 ? Sandy is a member of the Northeast Urban Renewal Board. She owns a restaurant in the district and is very invested in improving the district for both her business and Bozeman in general. She is diligent about filling out her Financial Disclosure Form each year and notes her business and property interests on the form. A developer recently brought before the board a proposal for a hotel in the adjacent unused lot. Sandy is very excited about the hotel, as she’s had some conversations with the owners and expects the two to share some parking facilities and of course, the hotel will bring in customers for her. She doesn’t mention this at the NURB meeting because she has no direct business interests in the project, and since her form is on file staff can bring it up if they think it’s a conflict. Sandy enthusiastically approves the hotel. Has Sandy correctly followed the process? 1 Board/Commission Scenario 45 Main Issues: Financial Interests and Disclosure – Sandy should disclose her interests in the project on the record (at the meeting). Section 6 of the City Code of Ethics states that officials must discharge their duties impartially and fairly, and Sandy certainly has financial interests and has even made efforts to discuss such, so she is not acting impartially. Pursuant to BMC 2.03.520, officials are not to use their position to secure any financial interest or personal interest. She should call the City Attorney as she may need to disclose her interests and recuse herself from the vote. Many boards require members with knowledge and investment in certain areas, so conflicts are expected and should not be assumed uncommon. This is managed through thoughtful disclosures and recusals when appropriate. Financial Disclosure Form – While the Financial Disclosure Form is a public record, staff members typically do not have direct access to these documents and will not necessarily know of potential conflicts of board members. It is the responsibility of the board member to recognize and disclose any potential conflicts on the record. Financial Disclosure Forms are not required for all boards, so if a board has this requirement pursuant to BMC 2.03.550, it has been determined board members are major financial decision makers and need to take this requirement seriously. Sandy is a member of the Northeast Urban Renewal Board. She owns a restaurant in the district and is very invested in improving the district for both her business and Bozeman in general. She is diligent about filling out her Financial Disclosure Form each year and notes her business and property interests on the form. A developer recently brought before the board a proposal for a hotel in the adjacent unused lot. Sandy is very excited about the hotel, as she’s had some conversations with the owners and expects the two to share some parking facilities and of course, the hotel will bring in customers for her. She doesn’t mention this at the NURB meeting because she has no direct business interests in the project, and since her form is on file staff can bring it up if they think it’s a conflict. Sandy enthusiastically approves the hotel. Has Sandy correctly followed the process? 1 Board/Commission Scenario 46 ? Gwen is an active member of the Parks and Recreation Advisory Board and vehemently opposes a proposed Parks Maintenance District. The subject has been discussed at the board a number of times, and while a few members agree with her, the majority of the board supports the creation of the district. Gwen feels like her voice isn’t being heard, so she puts in public comment to the City Commission, and writes a letter to the Chronicle expressing her concerns about the district, acknowledging her experience with the project given her membership on the RPAB. She makes sure to include “on behalf of RPAB” in her letters to reinforce her legitimate opinion and so that others will take her seriously. Has Gwen done anything wrong? 2 Board/Commission Scenario 47 Main Issues: Representation as an Individual – BMC 2.03.470.A.9 classifies board members as “officials” as they are appointed by the City Commission. Board members are appointed by the City Commission to advise the City Commission. All City officials must act within the course and scope of their position and must act on behalf of the municipality. City Commission liaisons sit on almost every board and hear conflicting viewpoints during meetings. Voicing her concerns to the board and City Commission is appropriate, but she goes further by writing to the Chronicle, as she is no longer acting on behalf of the municipality but instead of her own interests. She can do this as a private citizen, but using her position as advocacy of her own interests is not appropriate. Representation as the Board – Board members (and all officials and staff for that matter) have free speech rights and can express opinions as private citizens. However, Gwen cannot write “on behalf of RPAB” on any of her communications unless said communications were expressly approved by the board at a public meeting. She does not speak on behalf of the board unless given that permission, and should not represent herself as such. Gwen is an active member of the Parks and Recreation Advisory Board and vehemently opposes a proposed Parks Maintenance District. The subject has been discussed at the board a number of times, and while a few members agree with her, the majority of the board supports the creation of the district. Gwen feels like her voice isn’t being heard, so she puts in public comment to the City Commission, and writes a letter to the Chronicle expressing her concerns about the district, acknowledging her experience with the project given her membership on the RPAB. She makes sure to include “on behalf of RPAB” in her letters to reinforce her legitimate opinion and so that others will take her seriously. Has Gwen done anything wrong? 2 Board/Commission Scenario 48 ? Neil is the chair of the Midtown Urban Renewal Board, and is responsible for setting the agendas. He also owns a hotel in the district. Recently the agendas have been pretty full with new activity in the district, so he wants to prioritize retail and food service projects as he views that as a gap to fill with new development. A proposed hotel has asked the board to be considered for $40,000 in incentives. Neil knows that this amount of a request needs to be approved by the MURB and does not go before the City Commission, but he doesn’t want to put it on an agenda as his hotel is covering the needs of the district at the moment. He didn’t get any incentives when he built his hotel, so if they are in a time crunch they can proceed without the incentives. Neil informed the applicant the board is focusing on other priorities and that the request will not be considered at this time. Has Neil acted within 3 his authority? Board/Commission Scenario 49 Main Issues: Misuse of Position – Pursuant to MCA 2-2-105.5, a public official may not perform an official act directly and substantially affecting a business or other undertaking to its economic detriment when the officer of employee has a substantial personal interest in a competing firm or undertaking. While as the chair he has the authority to set the agenda, he has already made the call that the new hotel doesn’t need the incentives at this time, which he then uses to justify keeping the item off the agenda. He may even be retaliating against the new applicant if he views it unfair that this person could get incentives he didn’t. The definition of “improper governmental action” in BMC 2.03.470.8 includes action taken by an official that is intended to retaliate against a member of the public. If the new applicant chooses to come back later when he can get the incentives, Neil’s actions as chair have directly resulting in delaying a project, which will lead to less competition for him. Neil needs to act on behalf of the City in his decision-making. Financial Interest – Pursuant to BMC 2.03.470.6, “financial interest” does not need to be tangible. Regardless of whether Neil is intentionally creating a barrier for the new hotel, if the hotel is delayed due to his actions, he stands to keep business that the new hotel may have taken away. He needs to be aware of this level of financial interest, and even if his motivations are in the right place, the perception of a conflict may still exist. He needs to take this into account in his decision making when setting the agenda. Neil is the chair of the Midtown Urban Renewal Board, and is responsible for setting the agendas. He also owns a hotel in the district. Recently the agendas have been pretty full with new activity in the district, so he wants to prioritize retail and food service projects as he views that as a gap to fill with new development. A proposed hotel has asked the board to be considered for $40,000 in incentives. Neil knows that this amount of a request needs to be approved by the MURB and does not go before the City Commission, but he doesn’t want to put it on an agenda as his hotel is covering the needs of the district at the moment. He didn’t get any incentives when he built his hotel, so if they are in a time crunch they can proceed without the incentives. Neil informed the applicant the board is focusing on other priorities and that the request will not be considered at this time. Has Neil acted within 3 his authority? Board/Commission Scenario 50 ? Jenny is a member of the Community Affordable Housing Advisory Board, and also works for a local non-profit that helps to coordinate placement of low-income individuals in affordable housing, and she is happy that her involvement on the board can help facilitate a community need her job also addresses. Since she is an expert in the area, she makes sure that developers coming before the CAHAB are fully aware of the different resources in the community, and gets frustrated when someone asks for an incentive when they haven’t gone through all the steps to minimize development costs, such as working with Habitat for Humanity to potentially have them build some of the houses. She votes no on these projects since there are so many local organizations that could also benefit from a developer utilizing their resources, and only votes yes on projects that maximize these resources. Is Jenny doing anything wrong or is this appropriate given her position? 4 Board/Commission Scenario 51 Main Issues: Financial Interest – Again, pursuant to BMC 2.03.470.6, “financial interest” does not need to be tangible. While Jenny has good intentions, citizens may view Jenny as using her position to build up business for local non-profits, which benefits her directly in job security and community relationships. This is not the role of a board member, who as a city official needs to put on a different hat to advise the City Commission and act on behalf of the municipality. Impartiality – Section 6 of the Ethics Handbook states that officials must “discharge their duties impartially and fairly.” As a decision-maker, Jenny, like all board members, must consider the information before her with each application, and not apply standards not expressly given to her by law. Jenny is a member of the Community Affordable Housing Advisory Board, and also works for a local non-profit that helps to coordinate placement of low-income individuals in affordable housing, and she is happy that her involvement on the board can help facilitate a community need her job also addresses. Since she is an expert in the area, she makes sure that developers coming before the CAHAB are fully aware of the different resources in the community, and gets frustrated when someone asks for an incentive when they haven’t gone through all the steps to minimize development costs, such as working with Habitat for Humanity to potentially have them build some of the houses. She votes no on these projects since there are so many local organizations that could also benefit from a developer utilizing their resources, and only votes yes on projects that maximize these resources. Is Jenny doing anything wrong or is this appropriate given her position? 4 Board/Commission Scenario 52 ? Olive is a member of the Parking Commission, and with the rest of the commission is working to coordinate an expansion to the downtown parking garage. This week the Parking Commission is considering the construction contract for the garage, which includes as a sub- contractor an architecture firm for which her son works. Olive wasn’t sure if her approving the contract would show favoritism to a relative so she emailed the chair of the Parking Commission to let her know of the relationship, and the chair thanked Olive for letting her know. When the commission got to the item Olive did not disclose the conflict since she already did, and since her relation was once-removed from the contract before them, she voted to approve the contract. Did Olive go overboard with her disclosure, was it correctly handled, or was it not enough? 5 Board/Commission Scenario 53 Main Issues: Disclosure – Pursuant to BMC 2.03.520.D.1, disclosure must be on the record. It is Olive’s responsibility to disclose the conflict at the public meeting. Knowing of the conflict, the chair should also bring it up since Olive failed to. Nepotism – MCA 2-2-201 states officials are not to have interest in contracts if they are directly involved, defined as a person who directly monitors, extends, amends, audits, or is responsible for procurement of the contract, of which Olive certainly is. Whether her son is a sub-contractor is irrelevant as he may directly stand to benefit from this contract if approved. If Olive knows her son will or may work on this project she should disclose that and recuse herself from the vote. If Olive knows he will NOT work on that project, she should still disclose that information prior to the vote to avoid any misperceptions of favoritism later down the road. SUMMARY: These are complicated scenarios, and there can be fine lines between disclosing vs. recusing, speaking as an individual vs. board member, etc. There may also be more nuanced ethical issues with any of these scenarios, so only the main ones are highlighted. But these situations come up frequently, so please never hesitate to contact the City Attorney’s office for assistance prior to any decision-making. Olive is a member of the Parking Commission, and with the rest of the commission is working to coordinate an expansion to the downtown parking garage. This week the Parking Commission is considering the construction contract for the garage, which includes as a sub- contractor an architecture firm for which her son works. Olive wasn’t sure if her approving the contract would show favoritism to a relative so she emailed the chair of the Parking Commission to let her know of the relationship, and the chair thanked Olive for letting her know. When the commission got to the item Olive did not disclose the conflict since she already did, and since her relation was once-removed from the contract before them, she voted to approve the contract. Did Olive go overboard with her disclosure, was it correctly handled, or was it not enough? 5 Board/Commission Scenario 54 WHO CAN YOU RELY UPON FOR HELP? • At any time, you can ask your supervisor, HR or the City Attorney when you have questions about this training or about how to advise an employee or board or commission member 55 NEXT STEPS • Staff to create a final version of the presentation you will use with your staff and commission members. (Only slight changes will be made to make it relevant to the groups you will present to instead of this training oriented version) • PPT will be emailed to you and available in the Projects folder • Begin to book time during your staff meetings and/or place on board and commission agendas • Make sure to have a sign-in sheet and provide completed sheet and any comment feedback sheets to City Clerk Robin Crough before April 1st, preferably as sessions are completed 56 12-17-18 57 THANKS! 58