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HomeMy WebLinkAbout06-06-24 - Board of Ethics - Agendas & Packet MaterialsA. Call meeting to order B. Disclosures C. Changes to the Agenda D. Approval of Minutes D.1 Approve the minutes from October 2, 2023 and November 20, 2023.(Maas) E. Public Comment THE BOARD OF ETHICS OF BOZEMAN, MONTANA BOE AGENDA Thursday, June 6, 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 +1 253 205 0468 Access code: 968 5711 8026 Consider the Motion: 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 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 1 F. Action Items F.1 Approve Annual Ethics Report(Sullivan) F.2 Discussion of 2024/25 Work Plan Including Evaluation of Standards of Conduct, Hearing Procedures for Ethics Complaints, and Meeting with Chairs of Advisory Boards(Sullivan) G. FYI/Discussion H. Adjournment tone of voice for the record and limit your comments to three minutes. Consider the Motion: I move to approve the 2023 Annual Ethics Report 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:June 6, 2024 AGENDA ITEM TYPE:Minutes RECOMMENDATION:Consider the Motion: 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:The April 25, 2024 meeting minutes are attached for review. UNRESOLVED ISSUES:none ALTERNATIVES:none FISCAL EFFECTS:none Attachments: 04-25-24 Board of Ethics Meeting Minutes.docx Report compiled on: May 29, 2024 3 Bozeman City Board of Ethics Meeting Minutes, April 25, 2024 Page 1 of 4 THE CITY BOARD OF ETHICS MEETING OF BOZEMAN, MONTANA MINUTES April 25, 2024 Present:Sara Rushing, Kristin Taylor, Mark Bond Absent:None Excused:None Staff Present at the Dais:Retained Counsel Jordan Crosby, City Clerk (CC) Mike Maas A)00:14:37 Call meeting to order B)00:15:53 Disclosures C)00:16:10 Changes to the Agenda D)00:16:21 Public Service Announcements E)Approval of Minutes E.1 00:16:40 Approve the minutes from October 2, 2023 and November 20, 2023. 11-20-23 Board of Ethics Meeting Minutes.pdf 10-02-23 Board of Ethics Meeting Minutes.pdf 00:16:46 Motion to approve the minutes as submitted. Mark Bond: Motion Kristin Taylor: 2nd 00:17:17 Vote on the Motion to approve the minutes as submitted.The Motion carried 3 -0. Approve: Sara Rushing Kristin Taylor Mark Bond Disapprove: 4 Bozeman City Board of Ethics Meeting Minutes, April 25, 2024 Page 2 of 4 None F)00:17:26 Public Comment Chairperson Rushing opened general public comments. 00:18:13 Renee Callahan commented in support of further investigation in addition to the complaint at hand. G)00:22:04 Action Items G.1 00:22:06 Review of the Daniel Carty Ethics Complain Filed on March 8, 2024 Prelim Analysis Ltr 4.8.24.pdf D. Carty Ethics complaint against DCD Anna Bentley.pdf 2. Response to Complaint.2024-03-22.pdf 00:22:37 Report from Counsel Counselor Jordan Crosby referred to her written analysis, responded to public comment, and is available for questions. 00:23:34 Questions of Counsel 00:24:08 Statement of Complainant Daniel Carty presented on behalf of his complaint, summarized the points of complaint, and highlighted the rationale for the basis of his complaint. 00:28:40 Questions of Complainant 00:28:58 Statement of Accused Amy Christensen presented on behalf of Director Bentley, referred to the response of the complaint, addressed the video, asked the Board to adopted the written analysis from Counselor Crosby. 00:32:17 Questions of Accused Representative 00:32:34 Rebuttal by Complainant 00:35:07 Additional Questions 00:48:31 Public Comment Chairperson Rushing opened this item for public comments. 00:49:04 Renee Callahan commented. 00:50:16 Angie Kociolek commented. 00:51:48 Allison Sweeney commented. 00:54:32 Noah Ten Broek commented. 5 Bozeman City Board of Ethics Meeting Minutes, April 25, 2024 Page 3 of 4 00:57:31 Motion for the City Board of Ethics find that Mr. Carty's claim that Director Bentley violated the City's four core values during her participation in the January 17 meeting on the leaked video be dismissed for lack of jurisdiction over the matter pursuant to BMC 2.03.640. Mark Bond: Motion Mark Bond: 2nd 00:58:02 Discussion 01:04:40 Vote on the Motion for the City Board of Ethics find that Mr. Carty's claim that Director Bentley violated the City's four core values during her participation in the January 17 meeting on the leaked video be dismissed for lack of jurisdiction over the matter pursuant to BMC 2.03.640.The Motion carried 3 - 0. Approve: Sara Rushing Kristin Taylor Mark Bond Disapprove: None 01:05:23 Motion for the City Board of Ethics find that Mr. Carty's claim that Director Bentley violated City Code of Ethics standards of conduct in BMC 2.03.490(A) and/or (B) be dismissed because the complaint does not allege facts sufficient to constitute a violation of the Bozeman Code of Ethics pursuant to BMC 2.03.640(M)(1)(a). Mark Bond: Motion Kristin Taylor: 2nd 01:05:58 Discussion 01:10:50 Vote on the Motion for the City Board of Ethics find that Mr. Carty's claim that Director Bentley violated City Code of Ethics standards of conduct in BMC 2.03.490(A) and/or (B) be dismissed because the complaint does not allege facts sufficient to constitute a violation of the Bozeman Code of Ethics pursuant to BMC 2.03.640(M)(1)(a).The Motion carried 3 - 0. Approve: Sara Rushing Kristin Taylor Mark Bond Disapprove: None 01:11:09 Motion for the City Board of Ethics find that Mr. Carty's claim that Director Bentley violated City Code of Ethics by using City issued electronic devices for personal gain be dismissed because the complaint does not allege facts sufficient to constitute a violation of BMC 2.03.500. 6 Bozeman City Board of Ethics Meeting Minutes, April 25, 2024 Page 4 of 4 Mark Bond: Motion Kristin Taylor: 2nd 01:11:40 Discussion 01:15:12 Vote on the Motion for the City Board of Ethics find that Mr. Carty's claim that Director Bentley violated City Code of Ethics by using City issued electronic devices for personal gain be dismissed because the complaint does not allege facts sufficient to constitute a violation of BMC 2.03.500.The Motion carried 3 - 0. Approve: Sara Rushing Kristin Taylor Mark Bond Disapprove: None H)01:15:42 FYI/Discussion Chairperson Rushing noted an upcoming future meeting to look at bigger issues related to the code and handbook, and the complaint process. Mark Bond echoed the Chair's sentiments. Kristen Taylor concurred. I)01:18:47 Adjournment 7 Memorandum REPORT TO:Board of Ethics FROM:Mike Maas, City Clerk Greg Sullivan, City Attorney SUBJECT:Approve Annual Ethics Report MEETING DATE:June 6, 2024 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:Consider the Motion: I move to approve the 2023 Annual Ethics Report STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:Sec. 2.03.600(A)4 requires the Board to submit an annual report to the City Commission concerning its action in the preceding year. UNRESOLVED ISSUES:None identified ALTERNATIVES:Not approve the annual report FISCAL EFFECTS:None Attachments: Board of Ethics Annual Report 2023.docx Report compiled on: May 31, 2024 8 City of Bozeman Board of Ethics Report 2023 May, 2024 9 Board of Ethics Annual Report 2023 Page 2 of 9 Table of Contents Board of Ethics Summary …………………….………………………..…………………………. Page 3 Members…..……………………………………………………………………………… Page 3 Support Staff…………………………………………………………..…………...…… Page 3 Membership Details…………………………………………..…………………….. Page 3 Creation…………………………………………………………………….……………… Page 4 Duties and Responsibilities…………………………………………………………Page 4 Requirement of Annual Report …………………………………………….……Page 6 2023 Report………………….…………….………………………………………………………..……Page 7 2023 Ethics Training …………………………………….………………………………. Page 7 Summary of the Board’s Decisions and Opinions..…….………………….. Page 7 Upcoming Recommendations……………………………………..………………….Page 7 10 Board of Ethics Annual Report 2023 Page 3 of 9 Board of Ethics Summary Board Members: Sara Rushing - Chair Term expires July 31, 2025 srushing@bozeman.net Melissa Frost Term expired July 31, 2023 mfrost@bozeman.net Kristin Taylor Term expires July 31, 2024 ktaylor@bozeman.net Mark Bond Appointed November 28, 2023 bond.markg@gmail.com Term expires July 31, 2025 Support Staff: Mike Maas – City Clerk Administrative and Recording Services mmaas@bozeman.net Greg Sullivan – City Attorney Legal and Procedural Recommendations gsullivan@bozeman.net Julie Hunter – Executive Assistant Administrative Support jhunter@bozeman.net Cassandra Tozer – Human Resources Director Procedural Recommendations ctozer@bozeman.net Membership Details The Board of Ethics is made up of three members appointed by the City Commission to two- year terms. Members cannot be city elected officials, city employees, or currently serving on any other city board or commission. 11 Board of Ethics Annual Report 2023 Page 4 of 9 Annual Report1 The annual report of the Board is a way to inform the public, officials and city employees of what the Board has accomplished in the past year and report any decisions or opinions. The Bozeman Municipal Code Sec. 2.03.600 specifically states that the board shall: 4.No later than December of each year, submit an annual report to the city commission concerning its action in the preceding year. The report shall contain: a.A summary of its decisions and opinions, both open and confidential; the board shall make any alterations in the summaries necessary to prevent disclosure of any confidential information pertaining to any individual or to any organization if the disclosure could lead to the disclosure of the identity of a person who is entitled to confidentiality; and b.Recommend any legislative or administrative actions regarding the city’s policies and practices which the board believes would or could enhance the ethical environment in which public servants work. Creation of the Board of Ethics 2008 Bozeman City Charter The Bozeman City Charter (the “Charter”) was proposed by the City of Bozeman’s 2004-2006 Local Government Study Commission and was approved by the voters at the November 7, 2006 general election. The Charter became effective on January 1, 2008. The Charter confers certain powers and restrictions and prescribes procedures and the City’s governmental structure. The Charter was created …to secure the benefits of local self-government and to provide for an honest and accountable commission-manager government. (Preamble, City of Bozeman Charter) Section 7.01(a) of the Charter states, “the use of public office for private gain is prohibited.” Section 7.01 (b) of the Charter calls for the establishment of an independent Board of Ethics as well as the requirement for annual training and education of city officials, board members, and employees regarding the state and city ethics codes. 1 This report covers activities of the Board of Ethics through 12/31/2024. 12 Board of Ethics Annual Report 2023 Page 5 of 9 Ordinance No. 1726, Creation of the Board of Ethics To establish a Board of Ethics (the “Board”) as required in the voter approved Charter, the City Commission adopted Ordinance No. 1726 which provide guidelines for the creation of the board and other ethics-related content required in the Charter. These provisions are codified in the Bozeman Municipal Code at Chapter 2, Article 3, Division 4 (Sect. 2.03.460 et seq., BMC). Duties and powers of the Board, who may request board action, and the limitations of the board’s power are included. In May of 2009, the City Commission adopted Ordinance No. 1759 which amended the original Ordinance. Changes made relating to the board itself were minor. Board Duties and Responsibilities Bozeman Municipal Code, Chapter 2, Article 3, Division 4 – Code of Ethics The Code of Ethics is an important piece of City law. As the declaration of policy section 2.03.460 states, The purpose of this code of ethics is to set forth standards of ethical conduct, to assist public officials and employees in establishing guidelines for their conduct, to foster the development and maintenance of a tradition of responsible, accountable and effective public service, and to prohibit conflict between public duty and private interest. Following are sections within the Code of Ethics directly related to the Board and a brief summary of each. Other sections within the Code of Ethics provide additional direction to the Board and the public in addressing ethical issues and violations. Sec. 2.03.580 - Board of Ethics. This section defines the composition and terms of the Board, requirements for membership, and lists the support City staff will provide. Sec. 2.03.600 - Duties and powers of the board. This section provides details about Board procedures related to meetings, conducting hearings, and reporting and establishing procedures for administration and implementation of the Code of Ethics. These duties include: Evaluating all aspects of the Code of Ethics to ensure the public and all public servants have a reasonable opportunity and are encouraged to participate; Developing a plan to educate public servants about their rights, duties and responsibilities; 13 Board of Ethics Annual Report 2023 Page 6 of 9 Submit an annual report of summary decisions, opinions and recommended actions regarding ethical practices or policies; Arrange for an annual workshop or training program for all employees, elected officials and board and committee members; and Conduct hearings as needed. Sec. 2.03.610 - Who may request board action. This section outlines that any person may file a complaint with the Board and further explains who may request of the Board an ethics opinion. Sec. 2.03.620 – Limitations on board’s power. This section explains in detail what limitations are placed on the Board and that the Board may refer a matter to the city attorney for review. In addition to the City’s Code of Ethics, the Board has jurisdiction over State of Montana Ethics laws. These provisions are codified in Title 2, Chapter 2, Part 1, MCA (Sect. 2-2-101, et seq., MCA). 14 Board of Ethics Annual Report 2023 Page 7 of 9 2023 Year-End Report 2023 Ethics Training This year’s employee and elected and appointed officials ethics training curriculum was designed by a Steering Committee made up of City Attorney Greg Sullivan, Executive Assistant Julie Hunter, City Clerk Mike Maas, Human Resources Director Cassandra Tozer, Senior Human Resources Associate Eilis Gehle Redmond, Chief Building Official Ben Abbey, Streets Operator Andy Caldwell, Police Information Coordinator Wendy Elgen, Urban Renewal Program Manager David Fine, Assistant City Attorney Jennifer Giuttari, Water Treatment Plant Superintendent Jill Miller, Court Clerk Renee Boundy, and Building Inspector II Tony Modugno. This team created realistic ethics scenarios for ethics training. Variations of the training provided customization for employees and boards. The Board of Ethics approved the curriculum, which was provided to a team of Ethics Trainers, employees from across the organization, who taught the course to City employees, City Commission, and Advisory Boards. The City continues to require new employees, commissioners, and board members to complete ethics training shortly after hiring/appointment to help familiarize them with the Code and to meet the yearly training requirement even when joining the organization after the yearly training. Summary of the Board’s Decisions, Opinions, and Actions This section is designed for reporting to the Commission and public any advisory opinions or ethics hearings that were requested and may have been granted throughout the year. In addition, this section provides information on other activities of the Board. No formal or informal decisions or opinions were made by the Board in 2023. During the later part of 2023, the Board drafted an editorial to be published in the Bozeman Daily Chronicle re-introducing the public to the Board of Ethics. The editorial was published on November 29, 2023. The Board met on January 11th, August 28th, October 2nd, and November 20th. The Board agendas are noticed in advance of the meeting. Past Board meeting agendas are available in the City Documents Center on the City’s website. 15 Board of Ethics Annual Report 2023 Page 8 of 9 Video links to the Board’s meetings can be found on the City’s website under Commission Meeting Video (Past Meetings/Board of Ethics). Recommendations & Work Plan for 2024 The Board will work with the City Attorney’s Office and City staff to develop additional training opportunities for the Board; specifically, the Board requests the development of a mock hearing to refresh and develop the Board’s management of hearings on complaints. The Board plans to continue its review of the standards of conduct and other provisions in the Code of Ethics for whether these provisions continue to provide the best standards for the City. The Board also plans to create written hearing procedures. Summary of City Attorney Decisions, Opinions, and Guidance Pursuant to 2.03.630, BMC, the City Attorney may render an informal or formal advisory opinion with respect to the prospective conduct of a person. The City Attorney and Assistant City Attorney’s routinely provide guidance to City Commissioners, appointed board members, and City staff on matters related to the City and State ethics codes. Below is a summary of some of the more important opinions and guidance provide by the City Attorney’s Office. The City Attorney provided guidance related to an inquiry into whether a city commissioner was authorized to participate in a decision on a land use application when a person affiliated with the application had donated to their campaign for elected office. The City Attorney determined that a campaign contribution does not, on its own, rise to a personal or financial interest that would require the commissioner from participating in a vote on an application. The City Attorney also provided advice to an appointed advisory board member who had recently taken employment in a position that would call for the board member to provide comment on behalf of their employer before the board they were appointed to and before the City Commission. The City Attorney determined the City’s codes of ethics does not establish a per se conflict of interest rule and provided guidance for the board member to ensure the board member could identify future conflicts and the appropriate steps to take if conflicts arise. The City Attorney provided guidance for a member of a board in relation to their desire to participate as a citizen on a generally applicable legislative matter that would come before their board and the city commission. The City Attorney determined that simply because the board member’s personal employment could be affected by the legislation, that alone did not constitute a sufficient personal or financial interest requiring the board member to recuse themselves as the board member was situated similarly to all other citizens of the City. 16 Board of Ethics Annual Report 2023 Page 9 of 9 In another request, the City Attorney determined a board member did not have to recuse themselves from participation in a land use application that was on land adjacent to their neighborhood because the board member did not have a financial interest that could be affected by the application and their personal interest was not different from those of the entire community. In this circumstance, the City Attorney advised the board member to disclose the board member’s residency in the adjacent neighborhood and to state the board member consulted with the City Attorney. The City Attorney determined in two instances that prior to a board members participation in legislation regarding short term rentals, the board member’s ownership of a short term rental constituted a financial interest in the legislation thus establishing a conflict of interest requiring disclosure and recusal. Generally, the City Attorney provided guidance to staff regarding disclosure of relationships where a recusal was not required by the Code of Ethics. These include a situation where a family member of a city employee was interested in a city contract that was being administered by a department other than the employees’, and a city employee’s appointment to a non-profit board that interacts with the employee’s department, among others. 17 Memorandum REPORT TO:Board of Ethics FROM:Mike Maas, City Clerk Greg Sullivan, City Attorney SUBJECT:Discussion of 2024/25 Work Plan Including Evaluation of Standards of Conduct, Hearing Procedures for Ethics Complaints, and Meeting with Chairs of Advisory Boards MEETING DATE:June 6, 2024 AGENDA ITEM TYPE:Citizen Advisory Board/Commission RECOMMENDATION:Discussion of 2024/25 Work Plan Including Evaluation of Standards of Conduct, Hearing Procedures for Ethics Complaints, and Meeting with Chairs of Advisory Boards STRATEGIC PLAN:1.1 Outreach: Continue to strengthen and innovate in how we deliver information to the community and our partners. BACKGROUND:The purpose of this agenda item is to provide an opportunity for the Board to discuss its work plan for the remainder of 2024 and for 2025. Possible items include: Continue the review and evaluation of the substantive provisions of the Code of Ethics for a determination whether the substantive provisions comply with best practices. The City Attorney can lead the Board through the Definitions, Standards of Conduct, Use of City Resources, Treatment of the Public, Gifts, and Conflict of Interest, etc. provisions. Discussion on Hearing Procedures at 2.03.640, BMC. See the attached from Jordan Crosby. We can use this as a starting point for our discussion. The Board also discussed inviting the chairs from the City’s advisory boards for a discussion on their insights and concerns related to the Code of Ethics. UNRESOLVED ISSUES:Scheduling of future meetings ALTERNATIVES:None FISCAL EFFECTS:None Attachments: Brd Ethics Ltr 9 25 23.pdf 18 Report compiled on: May 31, 2024 19 20 21 22 EXHIBIT A KEY: Red language = proposed new language; or language that has been moved from a different section Stricken language = language to remove from the code or to move to a different section Sec. 2.03.610. Who may request board action. A. Any person may file an ethics complaint with the board, and. B. Ethics opinion: 1. Aany public servant, prospective public servant or former public servant, either personally or on behalf of an organization or governmental body, may request of the board an ethics opinion, whether a formal opinion or a confidential advisory opinion, regarding the propriety of any matter or matters to which the person is or may become a party; and 2. Aany decision maker, with the consent of a prospective appointee, may request of the board an ethics opinion regarding the propriety of any matter to which the public servant, prospective public servant or former public servant is or may become a party. BC. Any complaint or request for ethics opinion for board action shall be in writing, and shall be signed by the person making the complaint or request. Sec. 2.03.640. Procedures for hearing reviewing complaints. A. Any person may file a written complaint, signed and sworn, with the city clerk alleging a violation of this division or a violation of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2- 101 et seq.). B. A complaint shall specify the provisions of this division or provisions of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2-101 et seq.) alleged to have been violated and identify and discuss facts alleged to constitute the violation. C. Processing of complaint. C1. Upon receipt of such a complaint, but in any event not later than three working business days after receipt, the city clerk shall acknowledge receipt to the complainant, and forward the complaint simultaneously to the board, the person who is complained (“the accused”) against and the city attorney. 23 EXHIBIT A H2. The person complained against The accused shall have 20 days from the day after the city clerk serves the complaint on the person to submit a written response to the complaint. Service may be by certified mail, return receipt at the last known address in city records or personal service. 3. Upon receipt of the accused’s response, but in any event not later than three business days after receipt, the city clerk shall forward a copy of the response simultaneously to the board, the complaining party, and the city attorney. 4. The city attorney shall provide the board with a preliminary written analysis of the complaint and response no later than 30 days from the date the accused’s written response complaint is filed with the city clerk. LD. Presentation to the board: At the next regular meeting, or within 30 days, whichever is sooner, following receipt of the city attorney's preliminary written analysis, the board shall review and consider the complaint and response. and the city attorney's analysis, and, if a hearing is to be held, shall set a date certain for the hearing to take place within 30 days, unless the accused petitions for and the board consents to a later date. 1. The general procedure by which a complaint will be reviewed by the Board is as follows: a. The presiding officer or staff member shall present the item to the board along with a brief summary of the matter for discussion; b. Comments from the complainant or complainant’s representative will be heard by the board. Such comments are limited to no more than ten minutes; c. Comments from the accused or the accused’s representative will be heard by the board. Such comments are limited to no more than ten minutes; d. Rebuttal comments from the complainant or complainant’s representative will be heard by the board. Such rebuttal comments are limited to no more than five minutes; e. For purposes of clarification, the board may direct questions about the complaint to staff, the complainant, and/or the accused; f. The presiding officer will then invite members of the public to present or submit comments with those in favor of the complaint, followed by those who oppose the complaint, and concluding with those who neither favor nor oppose the complaint; g. All comments shall be directed to the presiding officer; h. The presiding officer shall call for a motion regarding the complaint, and after the motion is seconded, the presiding officer shall call for discussion from the board; and 24 EXHIBIT A i. After the discussion by the board, the presiding officer shall call for a vote. 2. After giving due consideration to a complaint, the board shall provide its oral finding and: a. Dismiss the complaint based on any of the following grounds: i. The complaint fails to allege facts sufficient to constitute a violation of this division or a violation of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2-101 et seq.); or ii. The board has no jurisdiction over the matter; or iii. Failure of the complainant to cooperate in the board's review and consideration of the complaint; or iv. The complaint is defective in a manner which results in the board being unable to make any sound determination. b. Determine that the complaint alleges facts to reasonably believe that a violation of this division or a violation of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2- 101 et seq.) may have occurred and schedule a hearing to determine whether a violation has in fact occurred. c. Determine that further information needs to be obtained for the board to make a decision, schedule the complaint for further review and consideration at a future time certain, and specifically identify the information needed to be obtained and presented at the future time. IE. If the complaint is dismissed pursuant to D(2)(a)(iv) above, the complainant shall have one opportunity within 15 days of the dismissal to amend the complaint and to refile it with the board. F. Hearing: 1. The purpose of the hearing is for the board to determine whether the complaint alleges facts sufficient to constitute a violation of this division or a violation of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2-101 et seq.). 2. During the hearing the complainant and/or the accused may: a. Be represented by counsel of the person's own choosing; b. Bring and have witnesses testify under oath; 25 EXHIBIT A c. Establish all pertinent facts and circumstances relevant to the complaint; d. Question or refute any evidence, including the opportunity to confront and question adverse witnesses; and e. Exercise, to the extent the board, in its discretion, determines to be just and reasonable, any pretrial discovery procedure usually available in civil actions. K3. Upon request of the accused, on its own motion, or upon request of the city attorney, the board shall issue subpoenas to compel the attendance of necessary witnesses. F4. The following principles shall apply to evidence in connection with hearings conducted by the board: 1a. The board shall not be bound to adhere to statutory Rules of Evidence, but shall be fundamentally fair in its administration of evidence; and 2b. During any hearing conducted by the board to determine whether a violation of this division has occurred, all evidence including certified copies of records which the board considers shall be fully offered and made a part of the record in the proceedings; and 3c. The accused or any other person under investigation shall be afforded adequate opportunity to rebut or offer countervailing evidence; and 4d. The board shall inform the accused or the accused's counsel of exculpatory evidence in its possession; and 5e. The standard of evidence in hearings conducted under this division shall be clear and convincing evidence admitted at the hearing. 5. Procedure. a. The general procedure in conducing the hearing shall be as follows: i. The presiding officer shall announce the purpose and subject of, and open, the hearing; ii. The presiding officer shall ask the city attorney to present a report on the matter at issue; iii. The presiding officer shall allow the complainant (either directly or through counsel) to provide a presentation and call any witnesses to provide testimony under oath; 26 EXHIBIT A iv. The presiding officer shall allow the accused (either directly or through counsel) to present and call witnesses to provide testimony under oath refuting the complaint; v. At the time the complainant and/or accused presents witness testimony, upon conclusion of their questioning, the other party will be given the opportunity to confront and question the witness at that time; vi. Following the accused’s presentation, the presiding officer shall allow the complainant (either directly or through counsel) to provide a rebuttal statement; vii. The board may then direct questions to the city attorney, the complainant and/or the accused for the purposes of understanding and clarification of the issues; viii. No member of the board shall express, or engage in, substantive opinions or discussion during the question period; ix. The presiding officer shall ask for comments, not questions, from the public who are in favor of the complaint; x. The presiding officer shall ask for comments, not questions, from the public who oppose the complaint; xi. The presiding officer shall ask the complainant if they wish to submit additional information and/or respond to any comment(s) made during the public comment period; xii. The presiding officer shall ask the accused if they wish to submit additional information and/or respond to any comment(s) made during the public comment period; xiii. The presiding officer shall close the hearing. Once closed, the hearing may not be reopened; xiv. The presiding officer shall call for a motion regarding the complaint, and after the motion is seconded, the presiding officer shall call for discussion from the board; and xv. After the discussion by the board, the presiding officer shall call for a vote. Jb. Any person whose name is mentioned or who is otherwise identified during a hearing being conducted by the board and who, in the opinion of the board, may be adversely affected thereby, may, upon request of the person or a representative of the person, or upon the request of any member of the board, appear at the hearing to testify on such person's own behalf or have a representative appear to so testify, and the board may permit any other person to appear and to testify at a hearing. 27 EXHIBIT A c. The board may choose to limit the time the complainant and accused may use for their presentations, including testimony at the hearing. If the board chooses to limit presentations and testimony, it will provide written notice to the complainant and accused of the time limitations at least five business days in advance of the hearing. 6. If following the hearing, the board finds the complaint alleges facts sufficient to constitute a violation of this division or a violation of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2-101 et seq.), the board will refer the complaint to the county attorney. 7. After it has made its final determination, the board shall issue its written findings of fact and conclusions, and may issue any additional reports, opinions, and recommendations as it deems advisable under the circumstances. All such reports shall be in compliance with all state and city laws governing confidentiality, open government, and torts. All such reports shall be reviewed by the city attorney prior to their issuance. 8. Any hearing shall be recorded in video format. E. During any investigation and during any hearing which is conducted to determine whether a violation of this division or a violation of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2-101 et seq.) has occurred: 1. The person under investigation or the accused may be represented by counsel of the person's own choosing; and 2. The accused or the accused's representative, if any, shall have an opportunity to: a. Challenge the sufficiency of any complaint which has been filed against the accused; b. Examine all documents and records obtained or prepared by the board in connection with the matter heard; c. Bring witnesses; d. Establish all pertinent facts and circumstances; e. Question or refute testimony or evidence, including the opportunity to confront and cross examine adverse witnesses; and f. Exercise, to the extent the board, in its discretion, determines to be just and reasonable, any pretrial discovery procedure usually available in civil actions. G. The board, in addition to its other duties and powers, may: 28 EXHIBIT A 1. Appoint a hearing officer to conduct hearings under this division; 2. With the approval of the city commission, retain outside legal counsel and other experts as needed with respect to hearings in accordance with its policies. The selection of a hearing officer and outside counsel and other experts and any contract for such persons shall be made after solicitation of recommendations from the city attorney and upon approval by the city commission of a contract for services approved as to form by the city attorney; 3. Order testimony to be taken by deposition before any individual who is designated by the board and, in such instances, to compel testimony and the production of evidence to the extent it is otherwise lawfully authorized to do so; 4. Require any person to submit in writing such reports and answers to questions relevant to the proceedings conducted under this division as the board may prescribe, such submission to be made within such period and under oath or otherwise as the board may determine; and 5. Request and obtain from the department of revenue copies of state income tax returns and access to other appropriate information as permitted under state law regarding all persons who are the subject of such investigation. H. The person complained against shall have 20 days from the day after the city clerk serves the complaint on the person to submit a written response to the complaint prior to the board deciding whether to hold a hearing. Service may be by certified mail, return receipt at the last known address in city records or personal service. I. If the complaint is dismissed, the complainant shall have one opportunity within 15 days of the dismissal to amend the complaint and to refile it with the board. J. Any person whose name is mentioned or who is otherwise identified during a hearing being conducted by the board and who, in the opinion of the board, may be adversely affected thereby, may, upon request of the person or a representative of the person, or upon the request of any member of the board, appear at the hearing to testify on such person's own behalf or have a representative appear to so testify, and the board may permit any other person to appear and to testify at a hearing. K. Upon request of the accused, on its own motion, or upon request of the city attorney, the board shall issue subpoenas to compel the attendance of necessary witnesses. L. At the next regular meeting, or within 30 days, whichever is sooner, following receipt of the city attorney's analysis, the board shall review and consider the complaint and the city attorney's 29 EXHIBIT A analysis, and, if a hearing is to be held, shall set a date certain for the hearing to take place within 30 days, unless the accused petitions for and the board consents to a later date. M. As soon as practicable after giving due consideration to a complaint, or, if a hearing was held, after the hearing, the board shall take any action or combination of actions which it deems appropriate and which it is lawfully empowered to take, including but not limited to the following: 1. Dismiss the complaint based on any of the following grounds: a. The complaint does not allege facts sufficient to constitute a violation of this division or a violation of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2-101 et seq.); or b. The board has no jurisdiction over the matter; or c. Failure of the complainant to cooperate in the board's review and consideration of the complaint; or d. The complaint is defective in a manner which results in the board being unable to make any sound determination; and 2. Determine that no violation of this division or a violation of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2-101 et seq.) has occurred; or 3. Determine that the complaint alleges facts sufficient to constitute a violation of this division or a violation of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2- 101 et seq.), and that the board will conduct a hearing, in which case the board shall promptly send written notice of such determination to the accused and to the party who made the complaint; or 4. Determine that further information must be obtained in order for the board to determine whether the complaint alleges facts sufficient to constitute a violation of the division or a violation of title 2, chapter 2, part 1 of Montana Code Annotated (MCA 2-2-101 et seq.); and a. Conduct its own investigation with respect to any alleged violation; or b. Schedule the complaint for further review and consideration at a future time certain, in which case the board shall promptly send written notice of such determination to the accused and to the party who made the complaint; or c. Refer the complaint to any appropriate authorities for criminal investigation; or 30 EXHIBIT A d. Refer the complaint, if it appears to be substantiated, to the county attorney or city attorney for prosecution; or e. Refer the complaint, along with the board's findings and conclusions, to any appropriate administrative authority for disciplinary action or other suitable remedial action; the board, although it has no independent administrative authority, may make any recommendation to any city administrator at any level of supervision, if the board finds that the recommendation will advance the objectives of this division; whether to implement the recommendation may be decided by whatever decision maker is authorized under the circumstances; if it is determined that misconduct or malfeasance has occurred, the board shall refer the matter to the city manager, city attorney or to the city commission, as circumstances warrant. 5. After it has made its final determination, the board shall issue its written findings of fact and conclusions, and may issue any additional reports, opinions and recommendations as it deems advisable under the circumstances. All such reports shall be in compliance with all state and city laws governing confidentiality, open government, and torts. All such reports shall be reviewed by the city attorney prior to their issuance. 31