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HomeMy WebLinkAbout04-25-24 - Board of Ethics - Agendas & Packet MaterialsA. Call meeting to order B. Disclosures C. Changes to the Agenda D. Public Service Announcements E. Approval of Minutes E.1 Approve the minutes from October 2, 2023 and November 20, 2023.(Maas) F. Public Comment THE BOARD OF ETHICS OF BOZEMAN, MONTANA BOE AGENDA Thursday, April 25, 2024 General information about the Board of Ethics is available our Board of Ethics webpage. If you are interested in commenting in writing on items on the agenda please send an email to comments@bozeman.net or visit the Public Comment Page prior to 12:00pm on the day of the meeting. Public comments will also be accepted in-person and through Video Conference during the appropriate agenda items. As always, the meeting will be streamed through the Commission's video page and available in the City on cable channel 190. For more information please contact Greg Sullivan, gsullivan@bozeman.net This meeting will be held both in-person and also using an online video conferencing system. You can join this meeting: Via Video Conference: Click the Register link, enter the required information, and click submit. Click Join Now to enter the meeting. Via Phone: This is for listening only if you cannot watch the stream, channel 190, or attend in- person United States Toll +1 346 248 7799 Access code: 961 0952 1864 I move to approve the minutes as submitted. This is the time to comment on any matter falling within the scope of the Board of Ethics. There will also be time in conjunction with each agenda item for public comment relating to that item but you may only speak once per topic. Please note, the Board cannot take action on any item which does not appear on the agenda. All 1 G. Action Items G.1 Review of the Daniel Carty Ethics Complain Filed on March 8, 2024 (Crosby) H. FYI/Discussion I. Adjournment persons addressing the Board shall speak in a civil and courteous manner and members of the audience shall be respectful of others. Please state your name and place of residence in an audible tone of voice for the record and limit your comments to three minutes. Review of the Daniel Carty Ethics Complain Filed on March 8, 2024 This board meets as needed. Board of Ethics meetings are open to all members of the public. If you have a disability that requires assistance, please contact our Acting ADA Coordinator, Max Ziegler, at 406.582.2439 (TDD 406.582.2301). 2 Memorandum REPORT TO:Board of Ethics FROM:Mike Maas, City Clerk SUBJECT:Approve the minutes from October 2, 2023 and November 20, 2023. MEETING DATE:April 25, 2024 AGENDA ITEM TYPE:Minutes RECOMMENDATION:I move to approve the minutes as submitted. STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:Due to technical issues there is no audio or video from the the October 2, 2023 meeting. The November 20, 2023 meeting minutes are attached for review. UNRESOLVED ISSUES:none ALTERNATIVES:none FISCAL EFFECTS:none Attachments: 11-20-23 Board of Ethics Meeting Minutes.pdf 10-02-23 Board of Ethics Meeting Minutes.pdf Report compiled on: April 15, 2024 3 Bozeman Board of Ethics Meeting Minutes, November 20, 2023 Page 1 of 2 THE BOARD OF ETHICS MEETING OF BOZEMAN, MONTANA MINUTES November 20, 2023 A) 00:05:41 Call meeting to order Present: Melissa Frost, Sara Rushing, Kristin Taylor Absent: None Excused: None Staff Present at the Dais: City Attorney (CA) Greg Sullivan, City Clerk (CC) Mike Maas B) 00:06:14 Disclosures C) 00:06:24 Changes to the Agenda D) 00:06:36 Public Comment 00:07:17 Daniel Carty commented on legal standards vs ethical standards for the City Commission vacancy appointment. E) 00:10:04 Action Items E.1 00:10:06 Discuss and Determine the Content of a Bozeman Daily Chronicle Editorial Regarding the City's Ethics Program 00:17:05 Motion to approve the content of a Bozeman Daily Chronicle Editorial Regarding the City's Ethics Program with the changes as discussed. Melissa Frost: Motion Kristin Taylor: 2nd 00:18:14 Vote on the Motion to approve the content of a Bozeman Daily Chronicle Editorial Regarding the City's Ethics Program with the changes as discussed. The Motion carried 3 - 0. Approve: Melissa Frost Sara Rushing 4 Bozeman Board of Ethics Meeting Minutes, November 20, 2023 Page 2 of 2 Kristin Taylor Disapprove: None 00:10:13 Board Discussion with guidance from City Attorney Sullivan F) 00:18:25 FYI/Discussion 00:18:50 Melissa Frost offered her thanks to staff for their support to the Board. CA Sullivan expressed his gratitude for Mel's service. 00:20:12 CA Sullivan provided an update to the Board related to questions received. He provided an update on projects for the board: 1. A mock hearing 2. An evaluation of the hearing procedures as part of an evaluation of the Ethics Code as a best practice 3. Update to the Ethics Handbook He provided a response to public comments received by the Board. G) 00:41:13 Adjournment 5 Board of Ethics Meeting Minutes, October 2nd, 2023 Page 1 of 3 BOARD OF ETHICS MEETING MINUTES October 2nd, 2023 Due to technical malfunctions this meeting is audio only. Present: Melissa Frost, Sara Rushing, Kristin Taylor Absent: None Excused: None Staff at the Dias: Deputy City Clerk (DCC) Alex Newby A) 00:00:15 Call meeting to order B) 00:01:16 Disclosures There were no disclosures. C) 00:01:24 Changes to the Agenda Assistant City Attorney Jen Quatari, informed the Board that due to unexpected sickness, Action Item G.1 would need to be continued. Approval of Minutes was pulled from the Agenda. The 08-28-23 Meeting Minutes were uploaded in place of the 01-11-23 Meeting Minutes, were not properly noticed and therefore and could not be approved. 08-28-23 Board of Ethics Meeting Minutes.pdf D) 00:03:41 Public Service Announcements There were no Public Service Announcements. F) 00:04:43 Public Comment There was no public comment. G) 00:05:44 Action Items G.1 Discuss and Determine the Content of a Bozeman Daily Chronicle Editorial Regarding the City's Ethics Program 6 Board of Ethics Meeting Minutes, October 2nd, 2023 Page 2 of 3 Ethics Editorial Revised.docx This item was continued due to unexpected sickness. City Attorney Greg Sullivan was unable to attend. G.2 Review the City's Annual Staff Ethics Training Curriculum 2023 STAFF ETHICS TRAINING PPT DRAFT.PPTX 00:06:18 Assistant City Attorney Jennifer Quatari presented the 2023 Ethics curriculum. Big Picture, why we are here, give staff resources, scenarios. Scenario 1: Gifts, Gratuities and Favors. Scenario 2: Standards of Conduct. Scenario 3: Use of City Resources. Scenario 4: Treatment of the Public Scenario 5: Confidential Information. 00:22:08 Motion to approve 2023 Staff Ethics Training. Melissa Frost: Motion Kristin Taylor: 2nd 00:22:14 Vote on the Motion to approve 2023 Staff Ethics Training. The Motion carried 3 - 0. Approve: Melissa Frost Sara Rushing Kristin Taylor Disapprove: None G.3 Review the City's Annual Boards' Ethics Training Curriculum 2023 BOARD ETHICS TRAINING PPT.pptx 00:22:45 Assistant City Attorney Jennifer Qautari presented the 2023 Ethics Program for Advisory Board Training. Scenario 1, Gifts Gratuities and Favors, and Rules of Conduct for Public Officers Scenario 2, Standards of Conduct and Conflicts of Interest, Scenario 3, Standards of Conduct, Scenario 4, Catch All Scenario. 00:27:17 Questions of Staff 00:30:32 Motion to approve the City's Annual Boards Ethics training curriculum in accordance to the City's charter. Kristin Taylor: Motion Melissa Frost: 2nd 00:30:40 Vote on the Motion to approve the City's Annual Boards Ethics training curriculum in accordance to the City's charter. The Motion carried 3 - 0. Approve: Melissa Frost Sara Rushing Kristin Taylor 7 Board of Ethics Meeting Minutes, October 2nd, 2023 Page 3 of 3 Disapprove: None H) 00:31:00 FYI/Discussion There was no public comment on FYI/Discussion Melissa Frost asked if there had been recent applications to the Board of Ethics. Discussion. Chair Rushing indicated that the process of filing complaints with the Board of Ethics will go on next month's agenda. I) 00:35:19 Adjournment 8 Memorandum REPORT TO:Board of Ethics FROM:Mike Maas, City Clerk Jordan Y. Crosby, Retained Counsel SUBJECT:Review of the Daniel Carty Ethics Complain Filed on March 8, 2024 MEETING DATE:April 25, 2024 AGENDA ITEM TYPE:Administration RECOMMENDATION:Review of the Daniel Carty Ethics Complain Filed on March 8, 2024 STRATEGIC PLAN:7.1 Values-Driven Culture: Promote a values-driven organizational culture that reinforces ethical behavior, exercises transparency and maintains the community’s trust. BACKGROUND:See attached preliminary written analysis, complaint, and response. UNRESOLVED ISSUES:See attached preliminary written analysis. ALTERNATIVES:See attached preliminary written analysis. FISCAL EFFECTS:none Attachments: Prelim Analysis Ltr 4.8.24.pdf D. Carty Ethics complaint against DCD Anna Bentley.pdf 2. Response to Complaint.2024-03-22.pdf Report compiled on: April 15, 2024 9 UGRIN ALEXANDER ZADICK, P .C. GARY M. ZADICK ROGER T. WITT KEVIN C. MEEK JORDAN Y. CROSBY Our File: B049-03 Chairperson Sara Rushing Board Member Kristin Taylor Board Member Mark Bond ATTORNEYS AT LAW #2 RAILROAD SQUARE, SUITE B P.O. Box 1746 GREAT FALLS, MONTANA 59403-1746 TELEPHONE ( 406) 771-0007 FAX (406) 452-9360 E-MAIL frontdesk@uazh.com Website http://uazh.com April 8, 2024 Board of Ethics for the City of Bozeman srushing@BOZEMAN .NET ktaylor@BOZEMAN.NET mbond@BOZEMAN.NET RE: Daniel Carty, February 8, 2024, Ethics Complaint Preliminary Written Analysis Dear Board Members: ANDREWT. NEWCOMER JAMES R. ZADICK SETH T. BONILLA GRANT R. KELLY VIA EMAIL ONLY As you are aware, my finn has been retained to serve as counsel and legal advisor to the Board of Ethics for the City of Bozeman (hereafter "Boardll) regarding the March 8, 2024, Ethics Complaint ("Complaint") brought by Daniel Carty. Pursuant to Bozeman Municipal Code ("BMC") 2.03.640(0), the following is our preliminary written analysis. I. BACKGROUND A. BOARD PROCEDURE. Montana law provides that where, as here, a local government has established a panel to review complaints alleging violations of Title 2, chapter 2, part 1 of the Montana Code Annotated (hereafter "Montana Code of Ethics,), that panel "shall review complaints and may refer to the county attorney complaints that appear substantiated." See§ 2-2-144(5)(a), MCA. The Bozeman Board of Ethics is 1 10 such a panel and must review complaints alleging that city public officials or public employees violated the Montana Code of Ethics or violated Bozeman's Code of Ethics {Part I, Chapter 2, Article 3, Division 4, BMC). See BMC 2.03.600{A){3) and 2.03.640{E) and {M). Montana law further directs that the City establish rules and procedures applicable to the Board. See§ 2-2-144{5){a), MCA. The City has done this in BMC 2.03.600 which outlines the Board's authority, and BMC 2.03.640, which summarizes the procedures for review of complaints. Specifically, following our written preliminary analysis, the Board shall "[a]t the next regular meeting, or within 30 days, whichever is sooner . . . review and consider the complaint and the city attorney's analysis." BMC 2.03.640{L). At this meeting, after "giving due consideration" to the complaint, the Board can take the following action(s): • Dismiss the complaint {or portions thereof) based on the following grounds: o Failure to allege facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics; o Lack of jurisdiction over the matter; o The complainant's failure to cooperate in the Board's review and consideration of the complaint; or o Because the complaint is defective in a manner which results in the board being unable to make any sound determination. See BMC 2.03.640{M){1){a)-(d); • Determine that no violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics has occurred. See BMC 2.03.640(M)(2); • Determine whether the complaint alleges facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics and schedule and conduct a hearing, within 30 days, to determine whether a violation has occurred. See BMC 2.06.640{E), (L), and (M)(3) and 2.03.600(A)(3); or • Determine that further information must be obtained for the Board to decide whether the complaint alleges facts sufficient to constitute a violation of the Bozeman Code of Ethics or violation of the Montana Code of Ethics; and o Conduct its own investigation with respect to any alleged violation. See BMC 2. 06. 640(M)( 4 )(a); o Schedule the complaint for further review and consideration at a future time certain. See BMC 2.06.640(M)(4)(b); o Refer the complaint to any appropriate authorities for criminal investigation. See BMC 2.06.640(M)(4)(c); o Refer the complaint, if it appears to be substantiated, to the county attorney or city attorney for prosecution. See BMC 2.06.640(M){4)(d); or 2 11 o Refer the complaint, along with the board's findings and conclusions, to any appropriate administrative authority for disciplinary action or other suitable remedial action. See BMC 2.06.640(M)(4}(e}. The Board may not reverse or modify a prior action of the Mayor, City Commission, or an officer or employee of the City. Instead, "[i]f the board finds a prior action of the mayor, the city commission, officer or employee to have been ethically improper, the board may advise the appropriate party that the action should be reconsidered. Upon such advice by the board, the action shall be reconsidered by the appropriate person or public body." See Sec. 2.03.620, BMC. Once the Board has made its final determination, it shall issue "written findings of fact and conclusions and may issue any additional reports, opinions and recommendations as it deems advisable under the circumstances." See BMC 2.06.640(M}(5). All reports should be reviewed by our office prior to issuance. /d. B. MR. CARTY'S COMPLAINT. Mr. Carty submitted his written Complaint against City Director of Community Development Anna Bentley on March 8, 2024. His Complaint is attached as Exhibit A. Mr. Carty asserts that Director Bentley exhibited unprofessional and unethical behavior in the leaked "City Manager-Director of Community Development (CM-DCD) video" (hereafter "leaked video").1 Mr. Carty alleges three complaints regarding the leaked video, claiming it demonstrates: Complaint 1: Director Bentley violated the City's four core values of Integrity, Leadership, Service, and Teamwork as identified and described on page 3 of the City of Bozeman Ethics Handbook;2 Complaint 2: Director Bentley violated the following two Standards of Conduct, as listed on page 6 of the City of Bozeman Ethics Handbook: i. "'Act morally and honestly in discharging their responsibilities"' and ii. "'Discharge their duties impartially and fairly.'" Complaint 3: Director Bentley violated "the spirit and intent ... of City of Bozeman Ethics Handbook, Section 7'' regarding employees' use of city resources, particularly equipment, for personal gain. Ex. A at 001. Mr. Carty argues that Director Bentley has no "guaranteed expectation of privacy" in the statements made on the video because she and former City Manager Jeff Mihelich were conducting City business by discussing a future City meeting on City-issued electronic devices, while on City time. /d. at 002. In the conclusion of his Complaint, Mr. Carty argues that Director Bentley's "equal participation" in the leaked video "has negated her professional credibility and any possibility that she can sufficiently Mr. Carty provided a link to the video in his Complaint. The video can be viewed at https://www. voutube.com/watch?v=iu TWr9Nod91. 2 The City of Bozeman Ethics Handbook (4th ed., May 21, 2013) is attached as Exhibit C. 3 12 discharge her duties in the future." He asserts she has acted unprofessionally and unethically while on City time. /d. Mr. Carty states that if the Board finds that Director Bentley violated the Bozeman Code of Ethics, then he requests Director Bentley's employment with the City be terminated. Ex. A at 002. C. DIRECTOR BENTLEY'S RESPONSE On March 22, 2024, Director Bentley, through her counsel Amy D. Christensen, submitted her response to Mr. Carty's ethics complaint. Director Bentley's response is attached as Exhibit B. Director Bentley provides background surrounding her involvement in the meeting on the leaked video and explains her participation. Ex. B at 001-002. She states that she "found herself in an uncomfortable position" during the meeting, as former City Manager Mihelich was her supervisor, who initiated the conversation and comments regarding the Mayor, other Commissioners, and some City employees. /d. at 002. She states she "felt awkward and participated only minimally~~ in the conversation until the topic turned to "internal City communication processes and the onboarding presentation." /d. Director Bentley further provided context for her comments on the video regarding her notice of communication issues which were against former City Mihelich's established protocol for communications between the Commission and City staff. /d. She notes that aside from her comments on this communication issue, her "substantive participation in the conversation ... was limited to the topic of onboarding for the new Commission.~~ /d. As it relates to Mr. Carty's specific allegations, generally, Director Bentley is critical of the Complaint's failure to identify the specific conduct at issue or explain how such conduct violates the Code of Ethics. /d. Regarding allegations that she violated the City's four core values, Director Bentley responds that Mr. Carty's Complaint is based on the City of Bozeman Ethics Handbook (hereafter "Handbook"), "an educational guide to help the public and City employees understand best practices and applicable legal requirements." /d. Director Bentley asserts that while the Handbook lists core values, such values are not included in the Code of Ethics or state law, and thus "an alleged violation of [the core values] cannot serve as the basis for an ethics complaint." /d. Director Bentley also disputes that she violated any of the core values in the January 17 meeting. She claims she was "placed in an awkward position of being on the receiving end of commentary her supervisor shared regarding City staff and public officials.~~ Director Bentley argues that she tried to navigate the situation as best she could through minimal participation, while waiting to discuss the onboarding of the Commission. /d. at 003. As to Complaint 2, Director Bentley denies violating the Bozeman Code of Ethics standards of conduct. /d. She again states that she "was placed in an untenable situation during a meeting with her supervisor and participated in the conversation when it turned to issues of communication with her staff or the on boarding of new Commissioners." /d. Director Bentley also questions whether any of her duties were discharged during this interaction, other than possibly the discussion regarding the onboarding process. /d. Responding to Complaint 3, Director Bentley admits that "she actively participated in the portion of the conversation relating to a future City meeting relating to onboarding new Commissioners." /d. 4 13 She, however, denies that she otherwise participated equally in the meeting on the leaked video in which commentary was shared by her supervisor regarding City staff and public officials. Director Bentley also denies she used City resources for personal use in violation of the Bozeman Code of Ethics, and merely participated in the meeting at the request of her supervisor during the workday, which "was not out of the ordinary", and "discussed matters for which she was responsible as part of her duties." /d. at 003-004. Director Bentley requests that Mr. Carty's Complaint be dismissed for failure to allege sufficient facts to constitute a violation pursuant to BMC 2.03.640(M)(1 )(a)./d. at 004. She contends the Complaint does not allege any facts describing a violation of the Code of Ethics. She also asserts that the Complaint does not adequately explain how what is depicted in the video violated any of the cited Code sections. If dismissal is not granted, Director Bentley requests a finding by the Board that no violation of the Bozeman Code of Ethics occurred pursuant to BMC 2.03.640(M)(2). /d. II. ANALYSIS A. COMPLAINT 1: VIOLATION OF CITY CORE VALUES Mr. Carty asserts the leaked video demonstrates Director Bentley violating the City's four core values of integrity, leadership, service, and teamwork. The "Core Values" Mr. Carty relies upon, and as set forth in the Handbook, in my opinion are aspirational goals for how City employees should act and make decisions. They are not ethical standards. No authority has been presented by Mr. Carty, nor is the undersigned aware of any authority which holds that these core values were intended to establish a cause of action for the purposes of ethical complaints. From my research, the City Commission adopted these core values on August 8, 2005. See Resolution No. 3832, attached as Exhibit D. While the Handbook identifies these core values, it improperly states that the City Code of Ethics "affirms the statement of core values" of the City. See Ex. Cat 005. A thorough review of the Bozeman Code of Ethics demonstrates no affirmation or adoption therein of these values. Nor does Resolution 3832 indicate an intent by the City Commission to include these values in the Bozeman Code of Ethics. The Bozeman Code of Ethics has been amended five timesJ since the adoption of Resolution 3832, and the Board must presume that the City Commission was aware of these core values at each of those times and could have exercised its legislative responsibilities in formally adopting and incorporating such values within the Code of Ethics and the Board's jurisdiction. It has not and it would be improper for the Board to interpret otherwise. Furthermore, the Handbook specifically includes a disclaimer that it "is not meant to serve as an authoritative legal guide for municipal and state ethics laws." Ex. Cat 003 (emphasis added). Montana law and Bozeman code define the jurisdiction and authority of the Board, which is limited to hearing complaints regarding alleged violation(s) of the Bozeman Code of Ethics (Part 1, Chapter 2, Article 3, Division 4) and/or Montana Code of Ethics (Title 2, chapter 2, part 1 of Montana Code Annotated). See§ 2-2-144(5)(a), MCA; BMC 2.03.600(A)(3) and 2.03.640(E). The existence of a justiciable controversy is a "threshold requirement" for the Board's adjudication. See Clark v. Roosevelt 3 See Ord. No. 1726 (11/26/07); Ord. No. 1759 (5/11/09); Ord. No. 1775 (12/28/09); Ord. No. 1856 (5/22/13); Ord. No. 2092 (11/16/21). 5 14 Cnty., 2007 MT 44, 1[11, 336 Mont. 118, 154 P.3d 48. "A justiciable controversy is one upon which a court's judgment will effectively operate, as distinguished from a dispute invoking a purely political, administrative, philosophical or academic conclusion." /d. (citation omitted}. Because the Board lacks any ability to provide relief related to the alleged violation of the City's core values, any decision on Complaint 1 would be merely advisory. /d. While the Board's duties allow it to render advisory opinions, it is only able to do so regarding matters "within the scope of the board's authority" and "regarding the propriety of any matter or matters to which the person is or may become a party". See BMC 2.03.600(8}(3}, 2.03.610(A} (emphasis added}. To do as Mr. Carty asks would require the Board to act beyond the scope of its responsibilities and its jurisdiction. Considering this clear authority, in my opinion, it would be improper for the Board to determine whether an ethical violation is substantiated based on broad policy statements which are intended only as a guide. Even for the sake of argument that the City's core values are established standards of ethical conduct within the code and Board's jurisdiction, Mr. Carty's Complaint fails to state any facts or provide any analysis explaining how Director Bentley's conduct in the leaked video demonstrates that her actions were in violation of any of the following values: (1} Integrity (be honest, hardworking, reliable, and accountable to the public}; (2} Leadership (take initiative, lead by example, and be open to innovative ideas}; (3} Service (work unselfishly for our community and its citizens}; and/or (4} Teamwork (respect others, welcome citizen involvement, and work together to achieve the best result}. See Ex. D at 001- 002. In contrast, my review of the video demonstrates that while there were times that Director Bentley may have conducted herself more businesslike and refrained from responding to her supervisors' critical comments, there is nothing to demonstrate she violated any of the aforementioned core values. In that case, and considering Mr. Carty's lack of any discussion or analysis, it is my opinion this provides yet another reason for dismissal of Complaint 1. B. COMPLAINT 2: VIOLATION OF STANDARDS OF CONDUCT Mr. Carty asserts that Director Bentley violated BMC 2.03.490(A} and (B) during the January 17 meeting on the leaked video because she failed to discharge her responsibilities morally, honestly, impartially, and fairly. His complaint, however, is completely silent and makes no effort to demonstrate how Director Bentley's comments and/or actions on the video, through the discharge of her responsibilities as Director of Community Development, were partial, unfair, immoral, or dishonest. As noted in the Montana Code of Ethics, the stated purpose for the ethical code is to prohibit "conflict between public duty[4] and private interest[S]". § 2-2-1 01, MCA. The Bozeman Code of Ethics 4 "Public duty" means an employee will carry out their duties for the benefit of the people of the state. § 2-2-103{1}, MCA. s In the Montana Code of Ethics, "private interest" is defined as "an interest held by an individual that is: {a} an ownership interest in a business; {b) a creditor interest in an insolvent business; {c) and employment or prospective employee for which negotiations have begun; {d}an ownership interest in real property; {e) a loan or other debtor interest; or {f) a directorship or officership in a business." § 2-2-101{7}, MCA. In the Bozeman City Code, "personal interest" means any interest in the matter which would affect the action of the official or employee other than a financial interest, and other than an interest because of membership in, or affiliation with, but not 6 15 similarly adopts this purpose. See BMC 2.03.460 ("The purpose of this code of ethics is ... to prohibit conflict between public duty and private interest."). Importantly, neither code indicates that it is the role of this Board to be the authority of professionalism for public employees. As noted above, while there were times that Director Bentley may have conducted herself more businesslike, there is nothing on the video in my opinion which demonstrates that she improperly or unethically discharged her duties as Director of Community Development. In fact, the opposite is true. First, Director Bentley actively participated and appropriately responded to questions regarding her involvement in the onboarding presentation. Additionally, pursuant to established protocol, as Director of Community Development, she properly reported to her supervisor that an elected official had violated the internal communication process by directly communicating with City staff without the city manager's involvement. Her incidental comment about the communication issue being an "albatross" for former City Manager Mihelich possibly could have been avoided. Most of us, however, have been guilty at one time or another, in a private setting, of responding in a manner that may be unbecoming of our position. Such a reaction, however, does not equate to being unethical, immoral, dishonest, unjust, or self- interested. In my opinion, Mr. Carty's failure to state any facts or provide any analysis explaining how Director Bentley's conduct in the leaked video demonstrates a violation of BMC 2.03.490(A) and (B) supports the Board dismissing Complaint 2 pursuant to BMC 2.03.640(M)(1 )(a). C. VIOLATION 3: USE OF CITY RESOURCES FOR PERSONAL GAIN Mr. Carty alleges that Director Bentley's participation in the conversation with former City Manager Mihelich, in which disparaging comments were made about other City employees, City officials, and the public, was in violation of BMC 2.03.500. Ex. A at 001-002. He claims Director Bentley and former City Manager Mihelich were conducting City business during the meeting by discussing a future City meeting on City-issued electronic devices while on City time. /d. BMC 2.03.500 provides as follows: Sec. 2.03.500. 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. No city automobile shall be used by a city employee or official going to or from home, except when such use is for the benefit of the city, as in the case of an employee on call outside of the employee's working hours. (Code 1982, § 2.01.050; Ord. No.1240, § 5, 1987; Ord. No.1726, § 2(2.01.050), 11-26-2007) employment by a social, fraternal, charJtable, service, educational, religious, governmental, health service, philanthropic, cultural, or similar nonprofit institution or organization." BMC 2.03.470(A)(10). 7 16 While "personal use" is not defined in the Code, it is commonly known to refer to use of an item not for City purposes, but for individual or personal enjoyment. In my opinion, Director Bentley's response correctly notes that Mr. Carty's Complaint fails to identify any specific "personal use" by her of equipment. In reviewing the video, it appears Director Bentley is remotely appearing for the meeting via her office computer. Mr. Carty's complaint, however, does not explain how such use was for Director Bentley's personal use and/or enjoyment or personal gain. A plain and unambiguous reading of BMC 2.03.500 indicates that the intent of this standard is to preclude City officials or employees from using City-owned property, including vehicles or equipment, for their own personal benefit. Some illustrative examples the undersigned can think of off-hand which may be a violation of this policy would include a City employee who takes and drives a city-owned vehicle on a family vacation, or a City employee who uses a City-owned mower to mow their own lawn, or a City employee who uses a City owned enclosed trailer to move personal items to their new home. It is my opinion such use has not been demonstrated here. Because Mr. Carty's Complaint fails to demonstrate Director Bentley's use of City electronic resources for a personal use, it is my opinion there has not been a violation of BMC 2.03.500, and I believe the Board should dismiss Complaint 3 pursuant to BMC 2.03.640(M)(1 )(a). Ill. RECOMMENDATIONS Based on the above analysis, and after considering the Complaint and Director Bentley's response, I offer the following recommendations. First, regarding Complaint 1, it is my opinion that the Board should decline to further review or make findings as to whether there was a violation of the City's core values and pursuant to BMC 2.03.640(M)(1)(b) dismiss Complaint 1 as moot for lack of jurisdiction. Or in the alternative, I recommend the Board vote to dismiss Complaint 1 because it does not allege facts sufficient to constitute a violation of the Code of Ethics (BMC 2.03.640(M)(1)(a)) or because the Complaint is defective in a manner which results in the board being unable to make any sound determination (BMC 2.03.640(M)(1 )(d)). Second, as to Complaint 2, it is my opinion that the Board should dismiss Mr. Carty's Complaint because it does not allege facts sufficient to constitute a violation of BMC 2.03.490(A) or BMC 2.03.490(B) of the Bozeman Code of Ethics. Accordingly, pursuant to BMC 2.03.640(M)(1)(a), I recommend the Board vote to dismiss Complaint 2. Finally, regarding Complaint 3, it is my opinion pursuant to BMC 2.03.640(M)(1)(a) the Board should vote to dismiss Mr. Carty's Complaint because it does not allege facts sufficient to support a violation by Director Bentley of BMC 2.03.500. IV. SUGGESTED MOTIONS Based on the above recommendations, I offer the following motions for the Board's consideration at its forthcoming meeting to take up Mr. Carty's Complaint. 8 17 A. COMPLAINT 1: VIOLATION OF CITY CORE VALUES 1. Committee Member moves: "I move that the City Board of Ethics find that Mr. Carty's claims that Director Bentley violated the City's four core values during her participation in the January 17 meeting on the leaked video be [dismissed I not dismissedj for lack of jurisdiction over the matter pursuant to BCM 2.03.640(M)(1)(b). Presiding officer requests a second to the motion, Committee discussion, and calls for the vote; and If Dismissed, proceed to B.1 below; if determined to Not Dismiss, proceed to the next question. 2. Committee Member moves: "I move that the City Board of Ethics find that Mr. Carty's claims that Director Bentley violated the City's four core values during her participation in the January 17 meeting on the leaked video be [dismissed I not dismissedj because the complaint does not allege facts sufficient to constitute a violation of the Bozeman Code of Ethics pursuant to BCM 2.03.640(M)(1)(a}. Presiding officer requests a second to the motion, Committee discussion, and calls for the vote; and If Dismissed, proceed to B.1 below; if determined to Not Dismiss, proceed to the next question. 3. Committee Member moves: "I move that the City Board of Ethics find that Mr. Carty's claims that Director Bentley violated the City's four core values during her participation in the January 17 meeting on the leaked video be [dismissed I not dismissedj because the complaint is defective in a manner which results in the board being unable to make any sound determination pursuant to BCM 2.03.640(M}(1)(d}. Presiding officer requests a second to the motion, Committee discussion, and calls for the vote; and Proceed to B.1 below. B. COMPLAINT 2: VIOLATION OF STANDARDS OF CONDUCT 1. Committee Member moves: 9 18 "I move that the City Board of Ethics find that Mr. Carty's claims that Director Bentley violated the Bozeman Code of Ethics standards of conduct found in BMC 2.03.490(A) and/or (B) be [dismissed I not dismissedj because the complaint does not allege facts sufficient to constitute a violation of the Bozeman Code of Ethics pursuant to BCM 2.03.640(M)(1 )(a). Presiding officer requests a second to the motion, Committee discussion, and calls for the vote ; and Proceed to C.1 below. C. Complaint 3: Use of City Resources for Personal Gain 1. Committee Member moves: "I move that the City Board of Ethics find that Mr. Carty's claims th at Director Bentley violated the Bozeman Code of Ethics by using City-issued electronic devices for personal gain be [dismissed I not dismissedj because the Complaint does not allege facts sufficient to constitute a violation of BMC 2.03.500. Presiding officer requests a second to the motion, Committee discussion, and calls for the vote; and Thank you for allowing us the opportunity to review this matter and offer our preliminary analysis. We look forward to answering any additional questions you may have at the upcoming meeting on this matter. Sincerely Yours, Encls.: Exhibit A-Carty February 8, 2024 Ethics Complaint Exhibit B -Director Bentley March 22, 2024 Response Exhibit C-City of Bozeman Ethics Handbook (4th edition, 5/21/13) Exhibit D -Resolution Cc: City Clerk Mike Maas (via email MMaas@BOZEMAN.NET Daniel Carty (dgc12@hotmail.com) 10 19 Anna BenUey/Amy Christensen (abentley@BOZEMAN.NET; Amy@cplawmt.com) 11 20 From: Daniel Carty <dgc12@hotmail.com> Sent: Friday, March 8, 2024 10:40 AM To: Mike Maas <MMaas@BOZEMAN.NET>; Sara Rushing <srushing@BOZEMAN.NET>; Mark Bond <mbond@BOZEMAN.NET>; Kristin Taylor <ktaylor@BOZEMAN.NET> Cc: Chuck Winn <CWinn@BOZEMAN.NET>; Greg Sullivan <gsullivan@BOZEMAN.NET>; Terry Cunningham <TCunningham@BOZEMAN.NET>; Agenda <agenda@BOZEMAN.NET> Subject: [EXTERNAL]Board of Ethics: Ethics complaint against DCD Anna Bentley CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. (Note: Please place the following ethics complaint in the Board of Ethics folder on the City's public comment webpage. Thank you.) Mar 8, 2024; 10:40am To: Mike Maas, City Clerk and Staff Liaison to the Board of Ethics; and Board of Ethics members (Sara Rushing, Chair; Mark Bond; and Kristin Taylor) Subject: Ethics complaint against Anna Bentley, Director Community Development Introduction: I am writing to file an ethics complaint against Anna Bentley, the City of Bozeman's (City) Director of Community Development (DCD). I am submitting this complaint solely as an individual and resident of Bozeman. My complaint is based on the unprofessional— and arguably unethical—behavior DCD Bentley exhibited in the leaked City Manager-Director of Community Development (CM-DCD) video (https://rumble.com/v4a96it-bozeman- leadership.html) that first came to the notice of Bozeman residents on Jan 31 - Feb 1, 2024. Specifics of ethics complaint: My ethics complaint against DCD Anna Bentley comprises the following three arguments: (1) Arguably, the leaked CM-DCD video shows DCD Bentley violating the City's four core values of Integrity (be honest, hardworking, reliable, and accountable to the public), Leadership (take initiative, lead by example, and be open to innovative ideas), Service (work unselfishly for our community and its citizens), and Teamwork (respect others, welcome citizen involvement, and work together to achieve the best result) as these core values are listed and described on page 3 of the City of Bozeman Ethics Handbook. https://www.bozeman.net/home/showpublisheddocument/480/638429195435070000 (2) Arguably, DCD Bentley violated the following standards of conduct listed in the City of Bozeman Ethics Handbook, Section 6. Standards of Conduct (page 7), (1) "Act morally and honestly in discharging their responsibilities," and (2) "Discharge their duties impartially and fairly." (3) Arguably, DCD Bentley violated the spirit and intent—if not the letter—of City of Bozeman Ethics Handbook, Section 7. Can Employees or Officials Use City Resources for Personal Gain? (page 7), which states "The City Code of Ethics clearly states employees and officials are not permitted the use of city-owned vehicles, equipment, material, or the use of other city resources for personal use." The leaked video clearly shows that Ms. Bentley was an equal participant in her conversation with former City Manager Jeff Mihelich, in which both EXHIBIT A - 001 21 made disparaging comments about their co-workers, City Commissioners, and the public. Moreover, during that conversation, Ms. Bentley had no guaranteed expectation of privacy because she and Mr. Mihelich were conducting City business (e.g., discussing a future City meeting) on City-issued electronic devices while on City time. Disciplinary action requested: In the City of Bozeman Ethics Handbook, Section 16. What are the Penalties for Violating the Code of Ethics? (page 15), it states: "All employees and officials must understand that a violation of the City or State Code of Ethics could lead to disciplinary action including termination, removal from office, or even criminal sanctions. While there are provisions in state code for violations of state law (2-2-144, MCA), a violation of the City Code of Ethics, in addition to termination or removal from office, could be prosecuted as a misdemeanor under the Bozeman Municipal Code’s general penalty provision (see 1.01.210, BMC)." If the Board of Ethics convenes to evaluate my complaint and finds DCD Bentley violated the City's Code of Ethics in any or all of the three ways I argue above, then I ask that DCD Bentley's employment with the City of Bozeman be terminated. Conclusion: Ultimately, DCD Bentley's equal participation in the CM-DCD video has negated her professional credibility and any possibility that she can sufficiently discharge her duties in the future. The bottom line is that DCD Bentley got caught acting unprofessionally and— arguably—unethically while on City time, and for those reasons her employment with the City of Bozeman should be terminated. Daniel Carty 213 N. Third Ave. Bozeman, MT 59715 dgc12@hotmail.com 406-548-2810 cc's: Chuck Winn, Acting City Manager; Greg Sullivan, City Attorney; Terry Cunningham, Mayor; and agenda@bozeman.net for the public record EXHIBIT A - 002 22 EXHIBIT B - 00123 EXHIBIT B - 00224 EXHIBIT B - 00325 EXHIBIT B - 00426 City of Bozeman Ethics Handbook Updated April 2013 Per Commission Ordinance No. 1856 (4th version of the handbook approved by the Board of Ethics on May 21, 2013) Approved by the Board of Ethics on June 3, 2010 Approved by the City Commission On July 12, 2010 in collaboration with Montana State University Extension LOCAL GOVERNMENT CENTER EXHIBIT C - 001 27 Ethics Handbook 2 of 17 City of Bozeman Ethics Handbook by Paul R. Lachapelle Montana State University Extension Local Government Center In collaboration with: Bozeman City Commission Bozeman Board of Ethics Bozeman City Attorney’s Office Bozeman City Clerk’s Office Montana State University Extension City of Bozeman P.O. Box 1230 121 North Rouse Bozeman, MT 59771 www.bozeman.net Copyright © 2010 EXHIBIT C - 002 28 Ethics Handbook 3 of 17 Preface This ethics handbook is produced by the city of Bozeman Board of Ethics to educate citizens and train employees and public officials in best practices and legal requirements. In addition, this handbook details specific ethical requirements and provides guidance on obtaining information and filing complaints. The City Code of Ethics provides legal requirements outlining conduct and best practices as detailed in Chapter 2.01 of the Bozeman Municipal Code. City of Bozeman’s Core Values Integrity: Be honest, hardworking, reliable, and accountable to the public. Leadership: Take initiative, lead by example, and be open to innovative ideas. Service: Work unselfishly for our community and its citizens. Teamwork: Respect others, welcome citizen involvement, and work together to achieve the best result. Disclaimer: This handbook is not meant to serve as an authoritative legal guide for municipal and state ethics laws. For specific legal direction regarding the city of Bozeman Code of Ethics and the Montana Code of Ethics, see the full state statutes, the complete city municipal code provisions, and consult with proper legal counsel. EXHIBIT C - 003 29 Ethics Handbook 4 of 17 Table of Contents Preface 1. What Are Ethics and Why Are They Important for Local Governments?............ 5 2. Why Have an Ethics Handbook?.......................................................................... 5 3. Who Is This Handbook Written For?.................................................................... 5 4. What Is the Board of Ethics and What Are Its Responsibilities?…………………….….6 5. Why are Employees and Officials Required to take an annual ethics training?.................................................................................................................. 6 6. What Are Standards of Conduct?........................................................................ 7 7. Can Employees or Officials Use City Resources for Personal Gain?………….......... 7 8. What If an Employee or Official Has a Conflict of Interest?................................. 8 9. Can Employees or Officials Disclose Confidential Information?.......................... 8 10. Can Employees or Officials Accept Gifts?.......................................................... 9 11. Do Employees or Officials Have to File Financial Disclosure Statements?....... 12 12. What Are the Post-Employment Policies for Employees or Officials?............. 12 13. Are There Restrictions on Ex Parte Communications?.................................... 13 14. What Is the City Whistle Blower Policy?.......................................................... 14 15. What State Laws Apply to Ethics in Local Government?................................. 14 16. What Are the Penalties for Violating the Code of Ethics?............................... 15 17. Are There Additional Resources on Ethics in Local Government?................... 15 18. What Is the Process to Seek Advice About the City Code of Ethics?............... 16 19. How Can an Ethics Complaint Be Filed?.......................................................... 17 EXHIBIT C - 004 30 Ethics Handbook 5 of 17 1. What Are Ethics and Why Are They Important for Local Governments? Ethics are commonly defined as the rules of conduct that govern how a society differentiates between good and bad, right and wrong. In practice, ethics guide individuals in identifying the correct course of action in how decisions are made. In local government, the role of ethics is significant in maintaining public trust, fairness, and the appearance of fairness in all government action. Many local governments, including Bozeman, have created laws that outline a Code of Ethics that specify the conduct of all government actions, be it employees, elected officials, or appointed officials, to ensure that all dealings are conducted fairly and in an unbiased manner in both appearance and fact. In general, a Code of Ethics, as is the case for Bozeman, is designed to guarantee that procedural requirements are followed so that all government actions are not only fair, but also appears to be fair. The goal of any ethics-related statute and program is to preserve the public’s confidence and trust in government. 2. Why Have an Ethics Handbook? In addition to the City Code of Ethics all city employees and officials are subject to the state of Montana Code of Ethics (2-2-101, Montana Code Annotated). Among the provisions outlined in the State Code of Ethics, a local government may “establish a three-member panel to review complaints alleging violations” (2-2-144(5)(a), MCA). More specific information about the State Code of Ethics is detailed in Section 14 of this handbook. This handbook was created as a result of the Bozeman City Charter (effective Jan. 1, 2008), and through codification of the City Code of Ethics in Chapter 2.01 of the Bozeman Municipal Code. The Charter states that the City shall implement an ordinance addressing matters such as conflict of interest, accepting gifts, use of confidential information, and public disclosure. The Charter also requires the City to establish a Board of Ethics. Among the many responsibilities of the board are to create an “ethics handbook for the use of all public servants and the public” (2.03.600.A.13). The City Code of Ethics also affirms the statement of core values of the city of Bozeman. This statement declares: “Integrity, leadership, service, and teamwork are the core values of our organization and provide a framework for our employees, community volunteers, and citizens,” (Resolution No. 3832). 3. Who Is This Handbook Written For? This handbook is written for all persons interested in the operation of Bozeman city government including citizens, city employees and elected and appointed officials. This handbook addresses legal requirements and best practices for the ethical behavior of city employees and officials as they undertake their public duties. Employees are defined as all individuals employed by the City EXHIBIT C - 005 31 Ethics Handbook 6 of 17 and its agencies, but do not include independent contractors hired by the City, City Commissioners, or any municipal judge (2.03.480). Officials are all officers and members of the city’s agencies, whether elected or appointed, whether paid or unpaid, whether permanent, temporary, or alternate, and that are not employees (2.03.470.A.9). Agencies are defined as boards, committees, departments, and offices of the city, without exception (2.03.470.A.1). Officials and employees are considered to be public servants under the City Code of Ethics (2.03.470.A.11). The City Code of Ethics also specifically states that this handbook is for use by the public (2.03.600.A.13) and that “every member of the public has the right to report improper government action” (2.03.590.B), and “any person” may file a complaint with the Board of Ethics or may request an ethics opinion (2.03.610.A). 4. What Is the Board of Ethics and What Are Its Responsibilities? The City Code of Ethics details the responsibilities of a three-member Board of Ethics (hereafter called “The Board”). The Board is made up of individuals who are residents of the city but not “elected officials of the city, full-time appointed city officials whether exempt or nonexempt, or city employees” (2.03.580.A). Board members are appointed by the City Commission to staggered terms and do not receive compensation. The responsibilities of the Board are to: Evaluate all aspects of the City Code of Ethics to ensure the public and all public servants have a reasonable opportunity and are encouraged to participate; Develop a plan to educate public servants about their rights, duties and responsibilities; Submit an annual report of summary decisions, opinions and recommended actions regarding ethical practices or policies; Arrange for annual training and education for all board members; and Conduct hearings as needed (2.03.600.B.1). The Board does not have authority to reverse or modify a prior action of the Mayor, governing body or an officer or employee of the City but may refer a matter to the City Attorney for review and consideration for appropriate action (2.03.600). The Board was created to ensure the public and all public servants have a reasonable opportunity and are encouraged to participate in any process for regularly evaluating the City Code of Ethics. 5. Why are Employees and Officials Required to take an Annual Ethics Training? According to the City Charter (Section 7.01(b)), annual training and education of city officials, city boards, and employees must occur regarding the state and city ethics codes. The Board of Ethics works with city staff to develop ongoing training and education programs to help employees and officials understand the code and their ethical responsibilities in day to day operations. The long term goal of the Board of Ethics is to continually evolve the training program so participants can expand on their understanding year after year. Scheduling for training is flexible and adaptive to the needs of the participants. It is however EXHIBIT C - 006 32 Ethics Handbook 7 of 17 mandatory. If an employee does not comply with the annual ethics training, they can be subject to disciplinary action. (Contact the Human Resources Department for details.) There are also consequences for failure of appointed officials (board and committee members) to attend. In September of 2012, with the passage of Ordinance No. 1833, the Bozeman Municipal Code was amended to include a statement that the City Clerk shall forward to the Commission annually a list of appointed officials who fail to take the required training under Bozeman Municipal Code section 2.03.600.A.14(b) and the Charter. The Commission may remove an appointed official for failing to comply. The City Charter (Section 7.01(b)) also says that “City officials, board members, and employees shall take an oath to uphold the state and city ethics codes.” A signed statement verifying that the employee or official is has received this Ethics Handbook and will not knowingly violate the code is required for all employees and board members and serves this purpose. Resources beyond the required training are also readily available to city employees and officials and can be obtained via the city of Bozeman website or by contacting the City Clerk’s office. (See Handbook Section 19 for details on contacting the Clerk’s office and Section 17 for further resources. 6. What Are Standards of Conduct? Standards of conduct refer to the basic legal rules that apply to all employees and officials. These rules are designed to provide practical day-to-day guidance for employees and officials as they fulfill their public duties. This section of the City Code of Ethics states that officials or employees must: Act morally and honestly in discharging their responsibilities; Discharge their duties impartially and fairly; Devote necessary time and effort; and Not use their position to secure any financial interest or personal interest, improperly influence any other official or employee in the performance of official duties, or act in a private capacity on matters they are directly responsible for (2.03.520.) Standards of conduct are necessarily broad as they are general principles for behavior. Application of these principles to every day circumstances is the duty of each employee or official. 7. Can Employees or Officials Use City Resources for Personal Gain? City officials and employees are entrusted with public resources including equipment and access to information. The temptation to use resources and knowledge for personal gain can be significant, especially when equipment, such as a vehicle, is entrusted to an employee. The City Code of Ethics clearly states employees and officials are not permitted the use of city-owned vehicles, equipment, material, or the use of other city resources for personal use. In addition, no city automobile shall be used by a city employee or official going to or from home, except EXHIBIT C - 007 33 Ethics Handbook 8 of 17 when such use is for the benefit of the city, as in the case of an employee on call outside of the employee’s working hours (2.03.500). The City also has a specific vehicle use policy (See Administrative Order 2007-03). 8. What If an Employee or Official Has a Conflict of Interest? Many of the rules established in the City Code of Ethics provide general principles required of an employee or official while others provide specific direction. The conflict of interest section in the City Code of Ethics provides both specific rules required of an employee or official when confronted with a potential conflict, and general principles, which can provide guidance if a situation is not covered by a specific rule. A conflict of interest can be either financial or personal. In general, no city official or employee shall take or influence official action if they have a financial or personal interest in any transaction or matter with the City without full public disclosure (further detailed in Section 11 of this handbook) (2.03.520.B). A financial interest is defined as any interest (such as ownership, a contractual relationship, or a business relationship), which will result in a monetary or other material benefit that has a value of more than fifteen dollars, other than salary or compensation, for services to the city (2.03.470.A.6). A personal interest is any interest that would affect the action of the individual other than a financial interest (2.03.470.A.10) It is better to avoid conflicts of interest than determine how to manage one if it arises (2.03.520). If a city official or employee has a conflict of interest, the individual should first review the specific language in the Code. If the Code does not provide specific direction, the employee or official is encouraged to contact the City Attorney (see Section 17 of this handbook). 9. Can Employees or Officials Disclose Confidential Information? Article II, Section 9 of the Montana Constitution provides an express statement regarding privacy: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” In some circumstances, despite strong open government laws in Montana, the protection of private or confidential information is a public duty. To achieve this, city officials or employees are not, without legal authority, permitted to disclose confidential information concerning personnel, property, government, or affairs of the City (2.03.530.A). Confidential information is defined as any information which is not available to the general public and which is obtained only by reason of an individual’s position with the City (2.03.530.B). City officials or employees are not permitted to use confidential information to advance their own financial or personal interest or the financial or personal interests of any other person (2.03.530.B). City employees and officials should use their best judgment to first determine if information is confidential in nature. If so, employees and officials are under obligation to protect those confidences. If an employee or official is in doubt as to whether information is confidential and EXHIBIT C - 008 34 Ethics Handbook 9 of 17 must be protected, the employee or official must contact the City Attorney. 10. Can Employees or Officials Accept Gifts? Gifts are undeniably a major topic of discussion for employees and officials. Questions invariably arise as to whether it is a violation of the City Code of Ethics to accept a tin of holiday cookies or a plaque for exceptional service to the public. In fact, a major topic of concern for employees and officials during the first several ethics trainings was the workability and enforceability of the City Code of Ethics 1987 prohibition against the acceptance of gifts, gratuities, and other favors. The underlying purpose of an ethics provision on the acceptance of gifts is to ensure that public office is not used for private gain, or to influence or reward a person for official action taken. A full prohibition did not take into account circumstances where the acceptance of gifts, gratuities, or favors are actually in the public interest; such as when the acceptance of a gift aids in establishing effective relationships between the City and the public, acceptance of awards for public service, and attending public events in an official capacity. To address these concerns, the Board of Ethics and City Commission adopted Ordinance 1833 significantly revising the gift provision in the City Code of Ethics. So what do these changes to the gift provision mean? In limited circumstances there are legitimate governmental interests that allow an employee or official to accept a gift, gratuity or favor without such acceptance being considered the use of public office for private gain or to influence or reward. Asking the following questions step by step may help you determine whether a gift or gratuity can be accepted under the City Code of Ethics and if so, whether a public disclosure statement is required to be filed: EXHIBIT C - 009 35 Ethics Handbook 10 of 17 1. Does the gift, gratuity or favor fall within any of the following categories? a. Items or services provided to an employee or official in their private capacity and without relationship to their employment or official position; b. 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; c. An award publically presented to an employee or official in recognition of public service; or d. Compensation for officiating at a ceremony. YES – The above items are NOT considered gifts. This item is not a gift, gratuity or favor according to city code. NO – Go on to step 2. 2. Would the gift, gratuity or favor tend to improperly influence (or appear to others to improperly influence) a reasonable person in the person’s position to depart from the faithful and impartial discharge of the person’s public duties? YES – STOP – It is unlawful to accept the gift regardless of its value. NO – it would not improperly influence or appear to influence. Go on to step 3. 3. Do you know or would a reasonable person in that position know the gift, gratuity or favor is primarily for the purpose of rewarding for official action taken (or appear to others as a reward for official action taken)? YES – STOP – It is unlawful to accept something as a reward for an official action. NO – It is not and would not appear to be a reward for official action taken. Go on to step 4. 4. Is the value of the gift, gratuity or favor less than $25? YES – the value is less than $25 and would not tend to influence or reward. Go ahead and accept. NO – the value is more than $25. Go on to step 5. EXHIBIT C - 010 36 Ethics Handbook 11 of 17 5. Does the gift, gratuity or favor have a value of less than $100 for an individual and is it provided incidental to and in conjunction with a public event where the official or employee’s attendance is in fulfillment of their official duties or is an educational or travel related expense incurred while representing the City? YES – the value is less than $100 and is provided incidental to and in conjunction with a public event in fulfillment of duties or is an educational or travel related expense incurred while representing the city, and would not tend to influence or reward. Go ahead and accept but only after filing a *public disclosure statement with the Board of Ethics that indicates 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. NO – the value is $100 or more. Go on to step 6. 6. Does the gift, gratuity or favor involve accepting payment or reimbursement from a person or entity for necessary expenses such as travel, lodging, meals and registration fees incurred while representing the City and does not place or appear to place the official or employee under obligation, clearly serves the public good, and is not lavish or extravagant? YES – it involves expenses incurred while representing the city, does not place me under obligation, serves the public good, is not lavish or extravagant and does not tend to influence or reward. Go ahead and accept but only after filing a *public disclosure statement with the Board of Ethics that indicates 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. NO – STOP – It is unlawful to accept a gift with a value of $100 or more that does not involve necessary expenses incurred while representing the city or that places one under obligation or does not serve the public good, or is lavish or extravagant. * The City Clerk has gift disclosure forms available. Please note that Montana State Law (2.03.540) also has guidelines related to accepting gifts but since the city of Bozeman has narrower criteria, employees and officials can look to the city code for guidance. If you are unsure whether you have interpreted the steps correctly or would like to verify whether or not you can lawfully accept a gift, gratuity or favor, please check with your supervisor, the Human Resources Manager, or the City Attorney. The City Attorney routinely advises employees and officials on a case-by-case basis regarding whether acceptance of a gift is lawful (for more information on contacting the City Attorney, see Handbook Section 17. EXHIBIT C - 011 37 Ethics Handbook 12 of 17 11. Do Employees or Officials Have to File Financial Disclosure Statements? Section 7.01(a) of the City Charter requires the “reasonable public disclosure of finances by officials with major decision-making authority over monetary expenditures and contractual and regulatory matters…” This mandate is fulfilled by 2.01.100 of the Code of Ethics. The purpose behind these disclosure requirements is to ensure a greater level of accountability and transparency in the management of public resources. The annual filing of a Financial Disclosure Statement is required for officials and employees who are determined by the City Manager and City Commission to be “major financial decision makers.” A list is created annually by the City Finance Director and the Human Resource Director and individuals subject to the disclosure requirements are notified annually (2.03.550.A.1). The City Clerk stores all submitted disclosures. In addition, the Finance Department creates a list of vendors and service providers for each department who contract for services or materials greater than $2,500 each month or more than $10,000 per year. Each member of a department must disclose if they have an economic relationship with that vendor (2.03.550.A.4). The list of vendors is maintained by the Finance Department. 12. What Are the Post-Employment Policies for Employees or Officials? Generally, the public views with distrust actions taken by individuals who once worked for or represented the City when knowledge gained in service to the city directly benefits the former employee or official. However, it is also understandable that some transactions, when disclosure is properly made, should not be prohibited because they are necessary to an individual’s economic efforts. To balance these considerations, city employees and officials are subject to specific rules that apply to post-employment activities. As a rule, city employees and officials may not, for 12 months following the date on which they cease to be a public servant, make any formal or informal appearance before or negotiate with any decision maker regarding a transaction or matter which was under the public servant’s direct responsibility or which the former public servant participated personally and substantially; without filing a public notice (2.03.560.A.1). Public noticing requirements can be found in 2.03.570. In addition, during the first 12 months after separation from the City, no former official or employee may, without filing a proper disclosure, represent, act or appear on behalf of an individual or entity other than the City in connection with any transaction or matter which was under the former public servant’s direct responsibility or which the former public servant participated personally and substantially as a public servant.(2.03.560.A.2). Public noticing requirements can be found in 2.03.570. The disclosure shall be made with the City Clerk and with the City Attorney (2.03.570). In EXHIBIT C - 012 38 Ethics Handbook 13 of 17 some instances, the public may not understand or be privy to these disclosures prior to a lawful action taking place. As a result, employees and officials who leave the City should be mindful of the long-term implications for the public trust when considering engaging in an activity subject to the City Code of Ethics. In addition, city employees and officials may not use their former official city title following termination of employment with the City unless the former public servant indicates the employment with the City was former to the current employment (2.03.560.A.3). 13. Are There Restrictions on Ex Parte Communications? Perhaps no other activity has the potential to negatively impact the public’s trust in city government than favoritism and bias in decision-making. When an official engages in discussions with individuals outside of the official public process, the public can view decisions involving those individuals with distrust. Ex parte communications is defined as a private, one- sided communication between a decision-maker and a party or person with an issue before that decision-maker. While the City Code of Ethics does not specifically address ex parte communications for employees and officials, these individuals should be prudent regarding potential communications, particularly for those individuals acting in a quasi-judicial capacity. The first principle regarding ex parte communication is to avoid it. If, however, an individual feels that he/she is involved in an ex parte communication that may negatively impact his/her ability to perform official duties, the individual should disclose the communication on the record, recuse him/herself from participating in the discussion and action on the subject, and step away from his/her official seat on the board or committee. If the communication does not affect an official’s ability to impartially perform his/her duties, the official should still disclose the existence of the ex parte communication and state on the record that his/her decision will be based solely on the public record and not on the substance of the ex parte communication. The City Attorney views ex parte communication as a critical issue demanding prompt response. As such, employees and officials are encouraged to contact and seek the advice of the City Attorney when such communications occur. 14. What Is the City Whistle Blower Policy? Transparent and fair practices are at the heart of the public’s trust in city government. When officials and employees violate this trust, the public should have the opportunity to actively report violations. Without such opportunity, the very premise upon which the City Code of Ethics is built will not be fulfilled. The City refers to “whistle blowing” as the “reporting of improper governmental conduct or action.” Every official or employee must refrain from improper governmental action. An improper governmental action includes any action taken by an official or employee during the performance of their duties that violates the standards of conduct in the City Code of Ethics or Montana state law, or is intended to harass, intimidate, or retaliate against any other employee, official, or any member of the public. This principle is critical: No official or employee EXHIBIT C - 013 39 Ethics Handbook 14 of 17 shall retaliate against any employee, official or member of the public regarding an allegation of improper governmental action (2.03.490.I). An improper governmental action also includes any action that violates a fiduciary duty to the City or its citizens or creates a danger to the public health or safety (2.03.470.A.8.a). To ensure the public is afforded the ability to “whistle blow,” the Code of Ethics specifically states that every city employee, official or member of the public has the right to report in good faith, information concerning improper governmental action (2.03.590.B). The City Code of Ethics further states that “each member of the public shall be treated courteously, impartially and fairly. All employees and officials shall in the exercise of their official duties refrain from taking any action, making of any statement, or authoring any document that is intended to harass, intimidate, or retaliate against any member of the public” (2.03.510). It is important to note that “improper governmental action” excludes personnel actions, including but not limited to: employee grievances, complaints, appointments, promotions, transfers, assignments, reassignments, reinstatements, restorations, reemployments, performance evaluations, reductions in pay, dismissals, suspensions, demotions, reprimands, violations of collective bargaining or civil service laws, or alleged violations of agreements with labor organizations under collective bargaining (2.03.470.A.8.b). Finally, a properly authorized city program or budgetary expenditure does not become an improper governmental action because a person disagrees with the city policy or decision (2.03.470.A.8.c). Members of the public who may want to discuss a potential whistle blowing action are encouraged to communicate with the City Attorney. 15. What State Laws Apply to Ethics in Local Government? Montana state law on ethics applies to local government officials and employees. As such, employees and officials must understand there are provisions of state law in addition to the City Code of Ethics that apply to employees and officials. State law and the City Code of Ethics prohibit conflict between public duty and private interest as required by the Constitution of Montana (2-2-101, MCA). Another important provision of state law applicable to employees and officials is the requirement that they may not receive a salary from two separate public employment positions that overlap for the hours being compensated. Employees and officials should familiarize themselves with other specific provisions and exceptions of state law that are detailed in the Montana Code Annotated (2-2-104 (3)(a), MCA). Employees and officials must also disclose in writing the nature of any private interest that creates a conflict to the Commissioner of Political Practices at the address below (2-2-131, MCA): Montana Commissioner of Political Practices 1205 8th Ave P.O. Box 202401 Helena, MT 59620-2401 EXHIBIT C - 014 40 Ethics Handbook 15 of 17 According to state law, a former public employee (as defined by 2-2-102(7), MCA) may not within six months following the termination of employment, contract with or be employed by an employer who contracts with the state or any of its subdivisions involving matters with which the former employee was directly involved during employment. This provision does not absolve an employee from complying with the post-employment activities of the City Code of Ethics (see Section 11 of this handbook). The prohibition on post-employment activity in the City Code of Ethics lasts for twelve months unless disclosed. Employees and officials are encouraged to familiarize themselves with 2-2-201, MCA and 2-2-105(3), MCA. City employees and officials are also subject to state law regarding nepotism. Nepotism is defined as the “bestowal of political patronage by reason of relationship rather than of merit” (2-2-301, MCA). It is unlawful to appoint a person who is related by blood (consanguinity) or marriage (affinity) to any position of “trust or emolument” (meaning any office or employment that results in compensation or privilege) within certain degrees of relationship. While state law related to nepotism applies only to these relationships, the appearance of favoritism with regards to friends or acquaintances of employees or officials can also be a hindrance to the public’s trust in city government. Employees and officials are encouraged to consult with the City Attorney for additional information on potential conflicts or exceptions to Montana state law requirements. 16. What Are the Penalties for Violating the Code of Ethics? The rules of the State and City Codes of Ethics are meaningless unless they can be enforced in a way that ensures the public trusts city officials and employees to serve city government. All employees and officials must understand that a violation of the City or State Code of Ethics could lead to disciplinary action including termination, removal from office, or even criminal sanctions. While there are provisions in state code for violations of state law (2-2-144, MCA), a violation of the City Code of Ethics, in addition to termination or removal from office, could be prosecuted as a misdemeanor under the Bozeman Municipal Code’s general penalty provision (see 1.01.210, BMC). 17. Are There Additional Resources on Ethics in Local Government? The following is a partial list of additional resources for information on ethics in local government: City of Bozeman Board of Ethics c/o Office of the City Clerk 121 North Rouse P.O. Box 1230 Bozeman, MT 59771-1230 Tel: (406) 582-2320 agenda@bozeman.net EXHIBIT C - 015 41 Ethics Handbook 16 of 17 Individual Board members can also be reached via bozeman.net email addresses. For current board member names and email addresses please see: bozeman.net/government/city-commission/ethics Local Government Center Montana State University P.O. Box 172240 Bozeman, MT 59717 Tel: (406) 994-6694 msulocalgov@montana.edu www.msulocalgov.org Ethics Resource Center 2345 Crystal Drive, Suite 201 Arlington, VA 22202 Tel: (703) 647-2185 ethics@ethics.org www.ethics.org City Ethics, Inc. 4417 Beach Blvd Suite 300 Jacksonville, FL 32207 info@cityethics.org www.cityethics.org Council on Governmental Ethics Laws P.O. Box 81237 Athens, GA 30608 Tel: (706) 548-7758 director@cogel.org www.cogel.org 18. What Is the Process to Seek Advice About the City Code of Ethics? If a city employee or official has a question about a potential ethics issue, impropriety, or violation, depending on the employee’s or official’s position and the nature of the issue, he/she should consult with his/her supervisor, Human Resources Department, or seek the advice of the City Attorney. Any member of the public may also request a formal or informal City Attorney opinion with respect to the ethical conduct of an employee or official (2.03.630.A). In some circumstances, the City Attorney may exercise discretion regarding whether to issue such an EXHIBIT C - 016 42 Ethics Handbook 17 of 17 opinion. Contact information is available below. Bozeman City Attorney’s Office Bozeman City Hall 121 North Rouse Ave. P.O. Box 1230 Bozeman, MT 59771-1230 Tel: (406) 582-2309 City of Bozeman Human Resource Department Bozeman City Hall 121 North Rouse Ave. P.O. Box 1230 Bozeman, MT 59771-1230 Tel: (406) 582-2300 19. How Can an Ethics Complaint Be Filed? Any member of the public may file a complaint with the Board of Ethics or may request an ethics opinion from the Board (2.03.640.A). Written complaints shall be filed with the City Clerk at the address below. City of Bozeman Board of Ethics C/o Office of the City Clerk 121 North Rouse P.O. Box 1230 Bozeman, MT 59771-1230 Tel: (406) 582-2320 agenda@bozeman.net City of Bozeman - Ethics Individual Board members can also be reached via bozeman.net email addresses. EXHIBIT C - 017 43 COMMISSION RESOLUTION NO. 3832 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN. MONTANA. ADOPTING THE CORE VALUES OF THE CITY OF BOZEMAN. AS IDENTIFIED BY ITS EMPLOYEES AND COMMISSIONERS AND ENCOURAGING ALL EMPLOYEES AND COMMISSIONERS TO PERSONALLY ADOPT THESE CORE VALUES AND PERFORM THEIR DUTIES IN COMPLIANCE WITH THEM. WHEREAS. the City of Bozeman employs over 300 people; and WHEREAS. the City of Bozeman provides a variety of services to the residents of the city, including but not limited to fire, police, streets, solid waste, parks and playgrounds, forestry, cemetery, water treatment and distribution, wastewater collection and treatment, engineering, planning, zoning, building inspection, library, recreation and swimming; and WHEREAS. it is important that those services be provided in a timely manner, to the best of one's ability, and with respect and courtesy; and WHEREAS. all of the employees and the Commissioners have been involved in developing the top core values of the organization during the past year. NOW. THEREFORE. BE IT RESOLVED by the City Commission of the City of Bozeman, Montana, that the core values for the City of Bozeman's employees and officials be identified as follows: Integrity Be honest, hardworking, reliable, and accountable to the public. Leadership Take initiative, lead by example, and be open to innovative ideas. Service Work unselfishly for our community and its citizens. Teamwork Respect others, welcome citizen involvement, and work together to achieve the best result. PASSED AND ADOPTED by the City Commission of the City of Bozeman, Montana, at a regular session thereof held on the 8th day of August 2005. AND ETRARO, Mayor ATTEST: R L. SULLIVAN City Clerk EXHIBIT D - 001 44 City of Bozeman's Core Values Integrity: Be honest, hardworking, reliable, and accountable to the public. leadership: Take initiative, lead by example, and be open to innovative ideas. Service: Work unselfishly for our community and its citizens. Teamwork: Respect others, welcome citiz~n involvement, and work together to achieve the best result. EXHIBIT D - 002 45 From:Daniel Carty To:Mike Maas; Sara Rushing; Mark Bond; Kristin Taylor Cc:Chuck Winn; Greg Sullivan; Terry Cunningham; Agenda Subject:[EXTERNAL]Board of Ethics: Ethics complaint against DCD Anna Bentley Date:Friday, March 8, 2024 10:40:12 AM CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the sender and know the content is safe. (Note: Please place the following ethics complaint in the Board of Ethics folder on the City's public comment webpage. Thank you.) Mar 8, 2024; 10:40am To: Mike Maas, City Clerk and Staff Liaison to the Board of Ethics; and Board of Ethicsmembers (Sara Rushing, Chair; Mark Bond; and Kristin Taylor) Subject: Ethics complaint against Anna Bentley, Director Community Development Introduction: I am writing to file an ethics complaint against Anna Bentley, the City ofBozeman's (City) Director of Community Development (DCD). I am submitting this complaint solely as an individual and resident of Bozeman. My complaint is based on the unprofessional—and arguably unethical—behavior DCD Bentley exhibited in the leaked City Manager-Director of Community Development (CM-DCD) video(https://rumble.com/v4a96it-bozeman-leadership.html) that first came to the notice of Bozeman residents on Jan 31 - Feb 1, 2024. Specifics of ethics complaint: My ethics complaint against DCD Anna Bentley comprisesthe following three arguments: (1) Arguably, the leaked CM-DCD video shows DCD Bentley violating the City's four core values of Integrity (be honest, hardworking, reliable, and accountable to the public), Leadership (take initiative, lead by example, and be open to innovative ideas), Service (work unselfishly for our community and its citizens), and Teamwork (respectothers, welcome citizen involvement, and work together to achieve the best result) as these core values are listed and described on page 3 of the City of Bozeman Ethics Handbook. https://www.bozeman.net/home/showpublisheddocument/480/638429195435070000 (2) Arguably, DCD Bentley violated the following standards of conduct listed in the City of Bozeman Ethics Handbook, Section 6. Standards of Conduct (page 7), (1) "Act morally andhonestly in discharging their responsibilities," and (2) "Discharge their duties impartially and fairly." (3) Arguably, DCD Bentley violated the spirit and intent—if not the letter—of City of Bozeman Ethics Handbook, Section 7. Can Employees or Officials Use City Resources for Personal Gain? (page 7), which states "The City Code of Ethics clearly states employeesand officials are not permitted the use of city-owned vehicles, equipment, material, or theuse of other city resources for personal use." The leaked video clearly shows that Ms.Bentley was an equal participant in her conversation with former City Manager JeffMihelich, in which both made disparaging comments about their co-workers, CityCommissioners, and the public. Moreover, during that conversation, Ms. Bentley had noguaranteed expectation of privacy because she and Mr. Mihelich were conducting City 46 business (e.g., discussing a future City meeting) on City-issued electronic devices while onCity time. Disciplinary action requested: In the City of Bozeman Ethics Handbook, Section 16. What are the Penalties for Violating the Code of Ethics? (page 15), it states: "All employees and officials must understand that a violation of the City or State Code of Ethics could lead to disciplinary action including termination, removal from office, or even criminal sanctions. While there are provisions in state code for violations of state law (2-2-144, MCA), a violation of the City Code of Ethics, in addition to termination or removal from office, could be prosecuted as a misdemeanor under the Bozeman Municipal Code’s general penalty provision (see 1.01.210, BMC)." If the Board of Ethics convenes to evaluate my complaint and finds DCD Bentley violated the City's Code of Ethics in any or all of the three ways I argue above, then I ask that DCD Bentley's employment with the City of Bozeman be terminated. Conclusion: Ultimately, DCD Bentley's equal participation in the CM-DCD video has negated her professional credibility and any possibility that she can sufficiently discharge her duties in the future. The bottom line is that DCD Bentley got caught acting unprofessionally and— arguably—unethically while on City time, and for those reasons her employment with theCity of Bozeman should be terminated. Daniel Carty 213 N. Third Ave.Bozeman, MT 59715 dgc12@hotmail.com 406-548-2810 cc's: Chuck Winn, Acting City Manager; Greg Sullivan, City Attorney; Terry Cunningham,Mayor; and agenda@bozeman.net for the public record 47 48 49 50 51