HomeMy WebLinkAbout2021 BOARD ETHICS TRAINING PPT - BID-DURD2021 Ethics Program
Jennifer A. Giuttari, Assistant City Attorney
City of Bozeman
City Attorney’s Office
Advisory Board Training - 2021
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Sec. 7.01. - Conflicts of Interest; Board of Ethics.
“(a) Conflicts of Interest. The use of public office for private gain is prohibited…
the terms of which shall include, but not be limited to: acting in an official capacity on matters in which the official has a private financial interest clearly separate from that of
the general public, the acceptance of gifts and other things of value, acting in a private capacity on matters dealt with as a public official, the use of confidential information,
and appearances by city officials before other city agencies on behalf of private interests… and shall provide for reasonable public disclosure of finances by officials with major decision-making
authority over monetary expenditures and contractual and regulatory matters…
(b) Board of Ethics. …the city manager to provide annual training and education of city officials, city boards, and employees regarding the state and city ethics codes. City officials,
board members, and employees shall take an oath to uphold the state and city ethics codes.”
Section 7.01 of the City Charter. See also BMC 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”
- Citizen Advisory Board Members are considered “public officials under” BMC 2.02.160 because the Commission has established the boards and appointed members to conduct city/governmental
business. See also BMC 2.03.480 – Persons covered.
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Ethics Training Purpose and Expectations
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.
– Sec. 2.03.460
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.
- Sec. 2.03.600 (14)
In short:
The City is required to establish standards and guidelines for conduct, provide annual trainings, for all representatives of the City to avoid the use of their public position for private
benefit
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Resources
Code of Ethics
Purchasing Policy
Montana Code Annotated (MCA)
Administrative Orders
A Copy of the Employee Handbook
Supervisor, colleagues, Human Resources, and the City Attorney’s Office
Sign In Sheet for Documentation of Participants
Flip Chart for Possible Future Questions or Other Concerns (putting items in the “Parking Lot”)
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Let’s Get Started!
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?
Cliff is the Staff Liaison and sends the upcoming meeting agenda to the Urban Parks and Forestry Board on Friday via email. Sam, a board member, uses the reply all button to send his
thoughts on Item G2, a recommendation about the Cemetery. Diane disagrees with Sam, and responds with her opinion on the item.
What is the primary issue here?
Additional discussion prompts/considerations:
What is the primary issue here?
Are these communications considered a public meeting?
Why can the staff liaison email the board the agenda?
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2-3-202, MCA – Meeting Defined
2-3-201, MCA – Legislative Intent – Liberal Construction
Cliff is the Staff Liaison and sends the upcoming meeting agenda to the Urban Parks and Forestry Board on Friday via email. Sam, a board member, uses the reply all button to send his
thoughts on Item G2, a recommendation about the Cemetery. Diane disagrees with Sam, and responds with her opinion on the item.
What is the primary issue here?
References:
2-3-202, MCA Defines a meeting “As used in this part, "meeting" means the convening of a quorum of the constituent membership of a public agency or association described in 2-3-203,
whether corporal or by means of electronic equipment, to hear, discuss, or act upon a matter over which the agency has supervision, control, jurisdiction, or advisory power”
2-3-203(6), MCA extends these requirements to “Any committee or subcommittee appointed by a public body or an association described in subsection (2) for the purpose of conducting business
that is within the jurisdiction of that agency is subject to the requirements of this section.”
2-3-201, MCA notes “…the provisions of the part shall be liberally construed.”
Due to the liberal construction, sequential emails fall under this same restriction; in our scenario, once Sam provided his thoughts on the item, it began a discussion. Had Diane simply
replied to Sam only, it would have continued the discussion through sequential communications.
Quorum is defined in Resolution 5323 and applies to any email that includes a majority of board members; which, by definition, all emails of agendas will include.
Staff liaisons can send an agenda, or scheduling questions, because it is a receipt of information by the board members. The issue arises when they attempt to discuss by response.
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?
Dorothy is on the Transportation Board and on the board of Free Wheeling, a non-profit that provides free bicycles for kids. Jacquie, the Executive Director of Free Wheeling will be
presenting a request to the Transportation Board for a recommendation on a grant program administered by the City Commission.
What is the primary issue here?
Additional discussion prompts/considerations:
What is the primary issue here?
Is this a conflict of interest?
Does Dorothy need to do anything when her non-profit presents to the Transportation Board?
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2-2-103, MCA – Public Trust – Public Duty
2-2-105, MCA – Ethical Requirements…
Sec. 2.03.490 BMC – Standards of Conduct
Sec. 2.03.520, BMC – Conflict of Interest
Dorothy is on the Transportation Board and on the board of Free Wheeling, a non-profit that provides free bicycles for kids. Jacquie, the Executive Director of Free Wheeling will be
presenting a request to the Transportation Board for a recommendation on a grant program administered by the City Commission.
What is the primary issue here?
References:
Questions of Conflict of Interest need to be asked of the City Attorney prior to the meeting; ideally, as soon as the agenda is reviewed.
Enforcement is subject to the Board of Ethics per 2-2-144, MCA
2-2-103, MCA “The holding of public office or employment is a public trust, created by the confidence that the electorate reposes in the integrity of public officers, legislators, and
public employees. A public officer, legislator, or public employee shall carry out the individual's duties for the benefit of the people of the state.”
2-2-105, MCA
(1) The requirements in this section are intended as rules of conduct, and violations constitute a breach of the public trust and public duty of office or employment in state or local
government.
(2) Except as provided in subsection (4), a public officer or public employee may not acquire an interest in any business or undertaking that the officer or employee has reason to believe
may be directly and substantially affected to its economic benefit by official action to be taken by the officer's or employee's agency.
(3) A public officer or public employee may not, within 12 months following the voluntary termination of office or employment, obtain employment in which the officer or employee will
take direct advantage, unavailable to others, of matters with which the officer or employee was directly involved during a term of office or during employment. These matters are rules,
other than rules of general application, that the officer or employee actively helped to formulate and applications, claims, or contested cases in the consideration of which the officer
or employee was an active participant.
(4) When a public employee who is a member of a quasi-judicial board or commission or of a board, commission, or committee with rulemaking authority is required to take official action
on a matter as to which the public employee has a conflict created by a personal or private interest that would directly give rise to an appearance of impropriety as to the public employee's
influence, benefit, or detriment in regard to the matter, the public employee shall disclose the interest creating the conflict prior to participating in the official action.
(5) A public officer or public employee may not perform an official act directly and substantially affecting a business or other undertaking to its economic detriment when the officer
or employee has a substantial personal interest in a competing firm or undertaking.
Sec. 2.03.490, BMC – Standards of Conduct
A. Officials and employees have an obligation to act morally and honestly in discharging their responsibilities.
B. 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.
C. Each official or employee serving on a multimember agency is expected to devote the time and effort necessary to the successful functioning of such agency.
D. No official or employee shall improperly use, directly or indirectly, the official or employee's city position to secure any financial interest or personal interest for said official
employee, or others.
E. 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.
F. No employee shall act in a private capacity on matters that they are directly responsible for as an employee.
G. No official shall act in a private capacity on matters acted upon as an official.
H. All officials and employees shall refrain from improper governmental action as defined in this division.
I. No official or employee shall retaliate against any employee, official, or member of the public regarding an allegation of improper governmental action because that employee, official,
or member of the public proceeded or is proceeding in good faith under this division including acting under section 2.03.580.D.
Sec. 2.03.520, BMC – Conflict of Interest
A. Nothing in this section shall be interpreted or construed to prohibit any official or employee from exercising their own individual legal rights as to their own personal interests
in a transaction or matter pending before the city or any of its agencies, or to prohibit an official or employee from testifying as a witness in any administrative or judicial proceeding.
However, no official or employee who represents their own personal interest before an agency of which they are a member or employee, or a member or employee of an agency to which the
matter may be appealed, shall participate in the decision of that agency or the appellate agency.
B. No official or employee shall engage in any employment or business which conflicts with the proper discharge of such official or employee's duties.
C. No official or employee shall take or influence official action if the official or employee has a financial or personal interest in a transaction or matter with the city.
D. If an official or employee has a financial or personal interest in the outcome of a transaction or matter coming before the agency of which they are a member or by which they are
employed, such official or employee shall:
1. Publicly disclose on the record of the agency, or to their superior or other appropriate authority, the existence of such financial or personal interest; and
2. Except as authorized pursuant to 2.03.520.A and G, shall not engage in deliberations concerning the matter or transaction, shall be disqualified from acting on the matter or transaction
and shall not communicate about such matter or transaction with any person who will participate in an action to be taken on such matter or transaction.
E. No employee, whether paid or unpaid shall represent or appear on behalf of any individual or entity before any agency of the city, or take any appellate proceedings from any action
of such agency, either personally or through an associate or partner.
F. No official whether paid or unpaid, shall represent or appear on behalf of any individual or entity in transaction or matter of concern to the agency on which that official serves,
either before that agency or any other agency of the city, or before the city commission, or take any appellate proceedings from any action of such agency or the commission. Such representation
may be made by the official's associate or partner, provided no reference to the participation of the involved official is made except for certification or other required identification
on prepared documents. The involved official shall not engage in deliberations concerning a transaction or matter represented by an associate or partner, shall disqualify himself/herself
from acting on the transaction or matter, and shall not communicate about such matter with any person who will participate in the action to be taken on such transaction or matter.
G. A city commissioner or mayor, as authorized pursuant to 2-2-121(10), MCA, may take action despite a conflict of interest described in this section if that commissioner's or mayor's
participation is necessary for the city commission to obtain a quorum or to otherwise enable the city commission to act. If so, the commissioner or mayor shall disclose the interest
creating the conflict prior to performing the official act.
H. This section does not absolve any official or employee from complying with Title 2, Chapter 2, MCA. If any provision of this section is in conflict with Title 2, Chapter 2, MCA the
more stringent provision, the provision that requires greater disclosure, or the provision that provides less authority to act in furtherance of a conflict, shall apply.
I. Any official or employee with a conflict of interest under this section shall, in addition to other requirements in this section and when required by law, comply fully with the disclosure
requirements of 2-2-131, MCA, and shall file this disclosure with the Montana Commissioner of Political Practices prior to acting.
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?
Bob’s development application was recommended for approval by the Community Development Board. He sends a fruit basket to each member of the board as a thank you. Each basket contains
a note that reads “Thank you very much for approving my application. I look forward to working with you again soon.”
What is the primary issue here?
References:
What is the primary issue here?
Is this considered a gift?
Does it matter if the application has already been approved?
What is the perception of accepting a gift with a note that reads “see you again soon”?
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Sec. 2.03.540, BMC – Gifts, gratuities and favors
2-2-104, MCA – Rules of Conduct…
Bob’s development application was recommended for approval by the Community Development Board. He sends a fruit basket to each member of the board as a thank you. Each basket contains
a note that reads “Thank you very much for approving my application. I look forward to working with you again soon.”
What is the primary issue here?
References:
In addition to statutory requirements, the Bozeman City Code of Ethics outlines specifics for gifts. The first question to ask is, “why did they provide this gift?” If it fails this
test, the value does not matter. If it was not an attempt to influence the impartial discharge of public duties, or is not a reward for official action taken, only then can value be
considered.
Sec. 2.03.540, BMC
A. Legislative Intent. The intent of this section is to further implement the declaration of policy set forth in 2.03.460 and establish specific standards of conduct related to gifts,
gratuities, and favors that are provided to a person because of a person's employment or official position with the city. These standards recognize legitimate governmental interests
exist that allow an employee or official to accept a gift, gratuity or favor in limited circumstances without such acceptance being considered the use of public office for private gain.
These interests include, but are not limited to, establishing effective relationships with citizens, acceptance of professional and community awards for public service, and attending
public events in an official capacity. At the same time, these standards make it clear that each public officer and employee holds such office or employment as a public trust.
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.
C. An employee or official may accept a gift, gratuity, or favor that has a value greater than $25.00 but less than $100.00 for an individual only if such gift, gratuity or favor:
1. Complies with 2.03.540.B.1 and 2; and
2. Is provided incidental to and in conjunction with a public event where the official or employee's attendance is in fulfillment of their official duties.
D.
1. An employee or official may accept a gift, gratuity, or favor that has a value greater than $25.00 but less than $100.00 for an individual only if such gift, gratuity or favor that
complies with 2.03.540.B.1 and 2 and is provided incidental to and in conjunction with a public event where the official or employee's attendance is in fulfillment of their official
duties.
2. An employee or official may accept payment or reimbursement from a person or entity for necessary expenses such as travel, lodging, meals, and registration fees in excess of $100.00
if the expense is incurred while representing the city and the reimbursement would not violate 2.03.540.B.1 and 2. Reimbursement or payment for educational activities in excess of $100.00
is permissible if the payment or reimbursement does not place or appear to place the official or employee under obligation, clearly serves the public good, and is not lavish or extravagant.
E. Upon the acceptance of a gift, gratuity, favor or award pursuant to 2.03.540.C, the recipient shall file a disclosure statement with the board of ethics. Such disclosure statement
shall indicate the gift, its estimated value, the person or entity making the gift, the relationship to the employee or official, and the date of the gift. The disclosure statement
is a public record.
F. A gift, gratuity, or favor does not include:
1. Items or services provided an employee or official in their private capacity and without relationship to their employment or official position:
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;
3. An award publically presented to an employee or official in recognition of public servicer; and
4. Compensation for officiating at a ceremony.
2-2-104, MCA
(1)(b) accept a gift of substantial value or a substantial economic benefit tantamount to a gift:
(m8) 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; or
(ii) 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.
(2) An economic benefit tantamount to a gift includes without limitation a loan at a rate of interest substantially lower than the commercial rate then currently prevalent for similar
loans and compensation received for private services rendered at a rate substantially exceeding the fair market value of the services. Campaign contributions reported as required by
statute are not gifts or economic benefits tantamount to gifts.
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In Conclusion
What steps should an individual take when ethical questions arise?
Review the Code
Ask the City Attorney’s Office:
Greg Sullivan 406.582.2311 gsullivan@bozeman.net
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Congratulations!
You have completed the 2021 Ethics training for the city of Bozeman
Please make sure you signed the attendance sheet.
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