HomeMy WebLinkAbout12-09-24 - Board of Ethics - Agendas & Packet MaterialsA. Call meeting to order
B. Disclosures
C. Changes to the Agenda
D. Action Items
D.1 Review of and Recommendation to the City Commission Regarding Proposed Ordinance
Amending Ethics Opinions and Complaint Procedures, and Adoption of Board of Ethics
Resolution 2024-01 Establishing Hearing Rules of Procedures(Giuttari)
E. Public Comments on Non-agenda Items Falling within the Purview and Jurisdiction of the Board
THE BOARD OF ETHICS OF BOZEMAN, MONTANA
BOE AGENDA
Monday, December 9, 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. Anonymous public comments are not distributed to the board or staff.
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
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1. Having reviewed and considered the draft ordinance amending ethics opinions and complaint
procedures, I hereby move to recommend the City Commission approve said draft ordinance.
2. Having reviewed and considered Resolution 2024-01 which establishes Board of Ethics Hearing
Rules of Procedure, I move to approve Board Resolution 2024-01.
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F. FYI/Discussion
G. Adjournment
This is the time to comment on any non-agenda 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 state whether you are a
resident of the city or a property owner within the city in an audible tone of voice for the record
and limit your comments to three minutes.
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
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Memorandum
REPORT TO:Board of Ethics
FROM:Jennifer A. Giuttari, Assistant City Attorney
Greg Sullivan, City Attorney
SUBJECT:Review of and Recommendation to the City Commission Regarding Proposed
Ordinance Amending Ethics Opinions and Complaint Procedures, and
Adoption of Board of Ethics Resolution 2024-01 Establishing Hearing Rules of
Procedures
MEETING DATE:December 9, 2024
AGENDA ITEM TYPE:Ordinance
RECOMMENDATION:1. Having reviewed and considered the draft ordinance amending ethics
opinions and complaint procedures, I hereby move to recommend the City
Commission approve said draft ordinance.
2. Having reviewed and considered Resolution 2024-01 which establishes
Board of Ethics Hearing Rules of Procedure, I move to approve Board
Resolution 2024-01.
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:
In September 2024, the Board of Ethics held a work session to examine the
Code of Ethics and provide staff with direction about substantive changes to
the Code. The September 2024 work session was held in accordance with
the board’s work plan established in June 2024. During the work session, the
Board considered recommendations from the City Attorney’s Office on three
sections in the Code. We drafted amendments to these three sections, as
requested during the work session, and have attached a draft ordinance for
the board’s consideration. See Exhibit A.
The following key changes were made in response to the board’s work
sessions:
2.03.610 – Who can request board action: This section is repealed and
reserved because the portion that applies to ethics complaints is now
incorporated in revised 2.03.640. As discussed during the September
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work session, we removed the requirement that the board issue ethics
opinions because with these revisions, the board’s duties are now
more focused on overseeing the hearing procedures. Additionally, in
practice, under 2.03.610 as written, if the board receives a request of
an ethics opinion, they would request a written analysis from their
legal advisor, which, unless there is a conflict, would be the city
attorney.
2.03.630 – City attorney ethics opinions: This section now includes the
ability of the public to request an ethics opinion from the city attorney
on a potential conflict of interest. We clarified how requests for
opinions from public officials and employees are made as well as the
ability for a person to use an ethics opinion as a defense to an ethics
complaint. We also included a requirement that the city attorney
provide the board a summary of significant ethics opinions issued.
2.03.640 – Procedures for complaints (revised to include Sec.
2.03.610): This section was redrafted to provide clarity about who can
file a complaint, how a complaint is filed, what needs to be contained
in the complaint, and the timeline for a respondent to answer and the
city attorney to provide a preliminary written analysis to the board.
We’ve also clarified the actions the board can take after an ethics
complaint is filed. The flowchart, attached as Exhibit B, provides a
more detailed explanation of this process.
In addition, we drafted Resolution 2024-01, attached as Exhibit C, which, as
indicated by the second suggested action, we are recommending that the
board adopt today. Resolution 2024-01 is a board resolution that adopts
Hearing Rules of Procedure (“Rules”), attached as Appendix A Exhibit C. The
Rules establish structure for the conduct of ethics hearings to ensure that a
hearing is fair and objective, simple in process, and eliminates unnecessary
delay. Contained in the Rules are principles of evidence that apply to an
ethics hearing. This includes establishing a standard of proof by which a
complainant must prove the allegations in the ethics complaint. This “clear
and convincing” standard is used in certain types of civil cases and is
currently used for municipal infractions. Montana case law defines “clear
and convincing evidence” as evidence that is definite, clear, and convincing.
Finally, the proposed evidentiary principles applicable to ethics hearings do
not permit the hearing panel or officer to consider public comment when
deciding if an ethics violation has occurred. This is to ensure that the hearing
is fair and impartial, and, because the hearing is akin to a judicial proceeding,
protects the integrity of the hearing record.
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Additionally, upon further examination, we determined that there are four
additional Code sections that need to be revised. Therefore, the draft
ordinance also includes recommended changes, not previously considered
by the board, to the following sections:
2.03.580 – Board of ethics: We made amendments to this section for
clarity. Specifically, we clarified how interim appointments occur, and
who the city attorney represents when there is a conflict acting as a
legal advisor for the board.
2.03.600 – Duties and powers of the board: We made organizational
changes to this section and made amendments for clarity. We clarified
the commission’s oversight of the board’s power to adopt procedural
rules. We also re-organized this section and included the board’s
ability to investigate ethics complaints and to appoint a hearing
officer. Both duties were previously included in 2.03.640.
2.03.620 – Limitations on board’s power: We clarified the board’s
limitations by including a non-exhaustive list of areas that the board
does not have authority over such as budgetary, personnel, and
legislative matters.
2.03.670 – Confidentiality of board information: We removed the
requirement pertaining to confidential advisory ethics opinions since
with these revisions the board will no longer be issuing ethics
opinions.
Should the Board vote in favor of these changes, we intend to present the
ordinance to the City Commission for approval in the early part of 2025.
UNRESOLVED ISSUES:Possible unresolved issue: 2.03.580, BMC establishes 2 year terms for board
members. Changing the term limit is outside of the scope of this review, but
should the board want to establish longer term limits nothing in state law
appears to prevent it from doing so.
ALTERNATIVES:Make no amendments to the Code of Ethics.
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FISCAL EFFECTS:None.
Attachments:
Ex. A. Ethics Code Revisions Ord.pdf
Ex. B. BOE Complaint Process flowchart.pdf
Ex. C. BOE Resolution 2024-01-Appx A final.pdf
Report compiled on: December 4, 2024
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Version February 2023
Ord XXXX
Page 1 of 10
ORDINANCE
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA REVISING BOZEMAN MUNICIPAL CODE OF ETHICS SECTIONS
2.03.580, 2.03.600 THROUGH 640, AND 2.03.670 RELATED TO PROCEDURES FOR
ETHICS COMPLAINTS AND OPINIONS.
WHEREAS, Section 4.07 of the Bozeman Charter permits the City Commission to
create boards, commissions, or committees as determined necessary or if required by statute; and
WHEREAS, MCA 2-2-144(5)(a) permits a local government to establish a three-
member panel to review ethics complaints; and
WHEREAS, 2.03.580, BMC, creates the City’s three-member board of ethics; and
WHEREAS, the Bozeman Code of Ethics contains provisions that provide ethical
standards for city employees and officials and also provides for a procedure for the filing of an
ethics complaint; and
WHEREAS, in addition to establishing the ethics complaint procedure, the Bozeman
Code of Ethics also includes provisions governing the board’s creation, its duties and powers,
limitations, requests for city attorney ethics opinions, who may file a complaint, and confidentiality
requirements; and
WHEREAS, revising the Code of Ethics will improve the ethics complaint process and
ensure the ethics complaint review process is fair and impartial;
WHEREAS, in June 2024, the board of ethics established a work plan with five goals
which included recommending the City Commission adopt an ordinance amending the Code of
Ethics; and
WHEREAS, in alignment with its work plan, in September 2024, the board of ethics
held a work session to consider what changes to the Code of Ethics are needed; and
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Ordinance (Revising the Bozeman Code of Ethics)
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WHEREAS, during its December 9, 2024 meeting, staff presented a draft of this
ordinance amending the Code of Ethics which reflected the direction it received during the board’s
September 2024 work session; and
WHEREAS, during its December 9, 2024 meeting, the board of ethics voted to
recommend the City Commission adopt the this ordinance.; and
WHEREAS, the City Commission determines this ordinance to be in the public interest.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
Section 1
That Section 2.03.580, Bozeman Municipal Code, will be amended as follows:
Sec. 2.03.580. Board of ethics.
A. There is created a board of ethics consisting of three members who shall serve without
compensation unless the city commission provides otherwise. Members of the board of ethics
shall not be elected officials, of the city, full-time appointed city officials whether exempt or
nonexempt, or city employees, nor shall they be currently serving on any other city board or
commission.
B. Members of the board shall be residents of the city.
C. Board members shall be appointed by the city commission. An appointment to fill a
vacancy or an interim appointment to resolve a conflict of interest shall be made by the city
commission appointing authority who appointed the member who formerly held the position
which is vacant.
D. The board shall select its own presiding officer from among its members.
E. Board members shall serve staggered terms of two years. A member shall hold office
until a member's successor is appointed. At initial appointment of the members of the board, one
of the initial members shall be appointed for a term of three years and thereafter for a term of one
year.
F. The city commission shall provide such staff support for the board as the city commission
determines to be necessary for the board to fulfill its duties. The city attorney is designated to be
the legal advisor for the board, except that the city attorney is not authorized to represent the
board in any legal action if doing so would create a conflict which would prevent the city
attorney from also representing the city or a duly authorized constituent of the city such as the
mayor, the city manager, or the city commission. The city clerk shall serve as recording secretary
to the board and shall provide such administrative services to the board as may be necessary.
Neither the city attorney nor the city clerk shall be eligible for appointment as board members.
Section 2
That Section 2.03.600, Bozeman Municipal Code, will be amended as follows:
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Sec. 2.03.600. Duties and powers of the board.
A. The board shall, in addition to its other duties:
1. Adopt written rules governing its procedures, including procedures for the hearing of
complaints, and providing for the holding of regular and special meetings. A majority
of the city commission may request review of the boards rules and may amend or repeal
such rules. , which rules shall be subject to the approval of the city commission; a A
copy of the rules shall be filed with the city clerk; and
2. Administer oaths, including requiring witnesses to testify under oath during
investigations or hearings;
3. Conduct hearings as needed to hear and decide specific cases in which 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.) is alleged, whether such cases arise from a complaint or are brought on
the board's own motion; and
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; and
5. Establish a process for systematically and regularly evaluating all significant aspects of
the administration and implementation of this division, which shall include an annual a
regular review of the full scope of operations of the board and its procedures, and which
shall ensure that the both the public and all public servants are provided a reasonable
opportunity, and are encouraged to participate in the process; and
6. Prescribe and make available forms for use under this division; and
7. When it deems it appropriate, request the city attorney for assistance in compelling the
production of documents and witnesses to assist the board in the conduct of any
investigation;
8. When circumstances make it necessary to do so, retain outside legal counsel and other
experts as needed after solicitation of recommendations from the city attorney (unless
the need to retain outside counsel is caused by a conflict involving the city attorney's
office), and upon approval by the city commission of a contract for services approved
as to form by the city attorney; and
9.7. Serve as legal custodian of the board's records, and accept, file, maintain and administer,
in accordance with all applicable laws, any information related to the purposes of this
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division; and
10.8 Make financial disclosure statements filed with the board city clerk available for public
inspection and copying facilities available at a charge which is the minimum amount permitted
under applicable law. All open opinions decisions of the board shall be filed with the city clerk
and are open to public inspection. To the extent permitted by law, confidential opinions
decisions and any records obtained or filed in connection with requests for confidential
opinions decisions, whether the records are written, tape recorded, videotaped, or otherwise
recorded shall be kept confidential; and confidential advisory opinions rendered shall be closed
in whole to public inspection. Confidential opinions and summaries of them or open references
to them shall be drafted in such a way as not to reveal confidential information;
11.9. Compile and maintain an index to all financial disclosure statements currently on file with
the board city clerk to facilitate public access to such statements; and
12.10. Develop a plan for implementation of a program to educate public servants who are
subject to this division and the public about their rights, duties and responsibilities hereunder;
and
13.11. Within one year from the date of the first meeting of the board When the board
determines it deemed necessary, submit to the city commission for its approval and
promulgation, an ethics handbook for the use of all public servants and the public; the human
resources department shall document that each city officer and employee receives a copy of
the handbook and acknowledges receipt of the handbook in writing; and
14.12. In coordination with the city attorney, city manager, and other appropriate city
personnel, arrange for the conduct of annual training and education, which shall serve as an
orientation for new board members and an opportunity for experienced members to explore
specific issues in depth.
a. Attendance at this training shall be made a condition of service as a member of the
board, and, before taking office, board members shall commit themselves to attend it.
b. The city clerk shall forward to the commission annually a list of officials who fail
to take the training required under this section and the Charter. The commission may remove
an official for failing to take the required training.
B. The board may:
1. Conduct hearings as it determines necessary or appropriate
a. To ascertain public opinions and to gather information from the general public,
employees, or others regarding any aspect of the city's ethics policies or practices;
and
b. For any other purpose for which the board is authorized to conduct hearings; and
2. Respond, as it deems appropriate, to requests for confidential advisory opinions;
the board may decline to render an opinion in response to any request for an
advisory opinion;
Conduct investigations on ethics complaints filed in accordance with Sec. 2.03.640.
The board has discretion to decide upon the scope and method of the investigation;
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Ordinance (Revising the Bozeman Code of Ethics)
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3. Render and publish formal opinions on any matter within the scope of the board's
authority which it may deem appropriate; the board may initiate opinions on its own
motion or upon request; any formal opinion shall be in writing; and
Appoint a hearing officer to conduct hearings on a complaint;
4. Prepare and publish special reports, technical studies, and recommendations to
further the purposes of this division.
Retain outside legal counsel and other experts as needed after soliciting
recommendations from the city attorney unless the need to retain outside counsel
is caused by a conflict involving the city attorney's office;
5. Request the city attorney for assistance in compelling the production of documents
and witnesses to assist the board in performing its duties;
6. Issue a subpoena for any necessary documents or to any witness it deems necessary
to attend an ethics hearing; and
7. Prepare and publish special reports, technical studies, and recommendations to
further the purposes of this division.
Section 3
That the entirety Section 2.03.610, Bozeman Municipal Code, is repealed and reserved.
Section 4
That Section 2.03.620, Bozeman Municipal Code, will be amended as follows:
Sec. 2.03.620. Limitations on board's power.
The board does not have the authority to reverse or otherwise modify a prior action, or to
proscribe a future action of the mayor, city commission, or an officer or employee of the city. This
includes budgetary, personnel, contractual, administrative, and legislative matters. If, after a
hearing, the board finds a prior action, or a future action of the mayor, the city commission, officer,
or employee to have violated or potentially be in violation of the code of ethics or state statutes
have been ethically improper, the board may advise the appropriate party that the action should be
reconsidered or avoided. Upon such advice by the board, the action shall be reconsidered by the
appropriate person or public body. If the board determines an existing city contract to be ethically
improper, after such determination and advice from the board, the city may void or seek
termination of the contract if legally permissible. The board may refer a matter to the city attorney
for review and consideration for appropriate action. Upon completion of review and consideration,
the city attorney's office shall report its findings to the board.
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Ordinance (Revising the Bozeman Code of Ethics)
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Section 5
That Section 2.03.630, Bozeman Municipal Code, will be repealed in its entirety and replaced as
follows:
Sec. 2.03.630. City attorney opinions.
A. Requests from the public. Any member of the public may request the city attorney to
issue an ethics opinion about an employee or official’s potential conflict of interest under
2.03.520. All requests to the city attorney for ethics opinions must be made in writing and
contain all facts relevant to the request. The city attorney may issue an opinion in writing.
B. Requests from public officials and employees. Any public official or employee may
request the city attorney to issue an ethics opinion about the public official or employee’s
own conduct, or another public official or employee’s conduct. All requests to the city
attorney for ethics opinions must be made in writing and contain all facts relevant to the
request. The city attorney may issue an opinion in writing.
C. Any person who seeks an ethics opinion prior to taking an action or performing a duty
and subsequently relies upon such an opinion, and who acts in good faith in accordance
with the provisions and findings of such opinion, may present the ethics opinion as a
defense to a complaint filed under this division.
D. The city attorney must provide the board a summary of significant opinions at a board
meeting.
Section 6
That Section 2.03.640, Bozeman Municipal Code, will be repealed in its entirety and replaced as
follows:
Sec. 2.03.640. Procedures for hearing complaints.
A. Any person may file a written ethics complaint. All ethics complaints must be filed with
the city clerk within the statute of limitations established in 2.03.690.
B. An ethics complaint must:
1. Name the individual whom the complaint is being filed against (“respondent”);
2. Identify which provisions of this division and/or provisions of title 2, chapter 2, part 1
of Montana Code Annotated (MCA 2-2-101 et seq.) the individual is alleged to have
violated;
3. Include a statement of the facts supporting the alleged ethics violation, as well as any
supporting physical evidence. Physical evidence may include documents, still or
moving images, audio, or video; and
4. Include an unsworn declaration as to the facts and allegations contained in the
complaint, as set forth in MCA 1-6-105.
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Ordinance (Revising the Bozeman Code of Ethics)
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C. Within five (5) working days of receiving the ethics complaint which complies with
2.03.640(A) and (B), the city clerk must acknowledge receipt of the ethics complaint to
the complainant and forward the complaint to the board, the city attorney, and the
respondent.
If the complaint fails to meet any of the requirements of 2.03.640(B), the city clerk must
reject the complaint.
D. Within twenty (20) working days of receiving the ethics complaint from the city clerk,
the respondent may file a written response with the city clerk. The response must contain
an unsworn declaration as to the contents of the response, as set forth in MCA 1-6-105.
Within five (5) working days of receiving the response, the city clerk must acknowledge
receipt of the response to the respondent and forward the response to the board, the city
attorney, and the complainant.
If the complaint fails to include an unsworn declaration, the city clerk must reject the
response. Within ten (10) working days of receiving notice of the rejection, the
respondent may re-file the response with the city clerk.
E. Within twenty (20) working days after receiving the response from the city clerk or the
period for the filing of the response has passed, the city attorney must provide the board,
complainant, and respondent with a preliminary written analysis of the complaint and
response.
F. Within twenty (20) working days of receiving the city attorney’s written analysis or at the
next regular meeting, whichever is sooner, the board must set a meeting for its review of the
ethics complaint, the response, and the city attorney’s analysis. The board may, at any time,
request additional information from the parties and set deadlines for the submission of the
additional information. At the close of its review, the board may:
1. Dismiss the complaint with or without prejudice;
2. Make a decision on the merits without a hearing. The board must notify the parties of
its decision at its next meeting and issue its written findings and conclusions within
twenty (20) working days; or
3. Determine a formal ethic hearing is necessary. The board has discretion to schedule
either an evidentiary hearing or oral argument, or both.
G. 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 respondent may be represented by counsel; and
2. The respondent or the respondent’s representative, if any, shall have an opportunity to:
a. Challenge the sufficiency of the complaint;
b. Examine all documents and records obtained or prepared by the board in
connection with the complaint;
c. Have witnesses testify under oath;
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Ordinance (Revising the Bozeman Code of Ethics)
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d. Question or refute testimony or evidence, including the opportunity to confront
and cross examine adverse witnesses.
This subsection H must be read in conjunction with the board’s adopted rules for the
conduct of hearings.
H. As soon as possible after the close of an ethics hearing, the board must issue its written
findings and conclusions. The board’s findings and conclusions must be supported by facts
that are included in the official hearing record.
Section 7
That Section 2.03.670, Bozeman Municipal Code, will be amended as follows:
Sec. 2.03.670. Confidentiality of board information.
No member of the board nor any public servant who has access to any confidential
information related to the functions or activities of the board shall divulge that information to
any person who is not authorized to have it. The identity of a person who requests a confidential
advisory ethics opinion is confidential, as is information describing or pertaining to any
organization mentioned in the request for an opinion if the disclosure of the information could
lead to the disclosure of the identity of the person requesting the confidential advisory opinion.
Section 8
Repealer.
All provisions of the ordinances of the City of Bozeman in conflict with the provisions of
this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of
the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force
and effect.
Section 9
Savings Provision.
This ordinance does not affect the rights and duties that matured, penalties that were
incurred or proceedings that were begun before the effective date of this ordinance. All other
provisions of the Bozeman Municipal Code not amended by this Ordinance shall remain in full
force and effect.
Section 10
Severability.
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Ordinance (Revising the Bozeman Code of Ethics)
Page 9 of 10
That should any sentence, paragraph, subdivision, clause, phrase or section of this
ordinance be adjudged or held to be unconstitutional, illegal, or invalid, the same shall not affect
the validity of this ordinance as a whole, or any part or provision thereof, other than the part so
decided to be invalid, illegal or unconstitutional, and shall not affect the validity of the Bozeman
Municipal Code as a whole.
Section 11
Codification.
This Ordinance shall be codified as indicated in Section 1 – 7.
Section 12
Effective Date.
This ordinance shall be in full force and effect thirty (30) days after final adoption.
PROVISIONALLY ADOPTED by the City Commission of the City of Bozeman,
Montana, on first reading at a regular session held on the _____ day of ________________, 20__.
____________________________________
Terry Cunningham
Mayor
ATTEST:
____________________________________
MIKE MAAS
City Clerk
FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the
City of Bozeman, Montana on second reading at a regular session thereof held on the ___ of
____________________, 20__. The effective date of this ordinance is ______________, 20__.
_________________________________
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Ordinance (Revising the Bozeman Code of Ethics)
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Terry Cunningham
Mayor
ATTEST:
_______________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
_________________________________
GREG SULLIVAN
City Attorney
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PROPOSED Board of Ethics Complaint Process
(December 9, 2024 Board of Ethics Meeting)
Clerk processes complaint
Complaint Filed
Copies sent to Board, Respondent & City Attorney
Respondent files written response & Clerk sends copies to
Board, Complainant, & City Attorney
City Attorney provides written analysis for Board,
Complainant, and Respondent
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Board meets for initial review of complaint
*Board Action:
Dismiss complaint with or without prejudice OR
Make a decision on the merits without a hearing OR
Determine a formal ethics hearing is necessary
*The board may request more info. from parties at any time
If the Board determines more
information is needed, after
receiving more information,
the board can make a final
decision OR schedule an
ethics hearing
If the Board determines an
ethics hearing is
necessary, the Board can
request more information
from the parties before
the ethics hearing
Board issues written findings and conclusions
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19
Version April 2020
Resolution 2024-01
Page 1 of 6
RESOLUTION 2024-01
A RESOLUTION OF THE BOARD OF ETHICS OF THE CITY OF BOZEMAN,
MONTANA, ESTABLISHING PROCEDURAL RULES FOR ETHICS HEARINGS
WHEREAS, Section 4.07 of the Bozeman Charter permits the City Commission to
create boards, commissions, or committees as determined necessary and required by statute; and
WHEREAS, 2.03.580, BMC, creates a three member board of ethics; and
WHEREAS, 2.03.600, BMC, establishes the duties and power of the board; and
WHEREAS, the board of ethics’ duties and powers includes “[c]onduct[ing] hearings
as needed to hear and decide specific cases in which a violation of [Chapter 2, Article 3, Division
5 of the Bozeman Municipal Code] or a violation of title 2, chapter 2, part 1, of Montana Code
Annotated (MCA 2-2-101 et seq.) is alleged, whether such cases arise from a complaint or are
brought on the board's own motion;” and
WHEREAS, MCA 2-2-144(5)(a) mandates a local government board of ethics to
establish procedures and rules for the board; and
WHEREAS, in June 2024, the board of ethics established a work plan focusing on five
areas: revising the City’s Ethics Handbook, adopting an ordinance on procedural changes for ethics
complaints and opinions, conduct a mock trial, perform a substantive review of the Code of Ethics,
and meet with board chairs regarding code changes; and
WHEREAS, in alignment with its work plan, in September 2024, the board of ethics
held a work session to consider what changes to the Code of Ethics are needed; and
WHEREAS, adopting Ethics Hearing Rules will increase the efficiency of ethics hearings,
provide guidance to the parties and the public, and ensure that hearings are fair, impartial, and
objective; and
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Version April 2020
Resolution 2024-01
Page 2 of 6
WHEREAS, given the suggested amendments to the Code of Ethics, the board now wishes
to establish rules for the conduct of hearings.
NOW, THEREFORE, BE IT RESOLVED by the City Commission of the City of
Bozeman, Montana, to wit:
Section 1.
The Board of Ethics adopts Hearing Rules of Procedure, attached as Appendix A.
Section 2.
The Hearing Rules of Procedure are effective upon adoption by the Board.
PASSED, ADOPTED, AND APPROVED by the Board of Ethics of the City of
Bozeman, Montana, at a regular session thereof held on the ____th day of _________, 2024.
___________________________________
Sara Rushing
Board Chair
ATTEST:
___________________________________
MIKE MAAS
City Clerk
APPROVED AS TO FORM:
___________________________________
GREG SULLIVAN
City Attorney
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APPENDIX A
Board of Ethics Hearing Rules of Procedure
Section 1. General Provisions.
Section 1.01. Purpose. The purpose of the Board of Ethics (“Board”) Hearing Rules of
Procedure (“Rules”) is to establish rules of procedure for ethics hearings. The Rules provide a
structure for the conduct of ethics hearings to ensure a hearing is fair and objective, simple in
process, and eliminates unnecessary delay.
Section 1.02. Authority. The Board adopts these Rules pursuant to 2.03.600.A.1, BMC and
MCA 2-2-144(5)(a).
Section 1.03. Special Procedures. The Board may adopt special procedures for a hearing,
pursuant to 2.03.600.A.1, BMC and MCA 2-2-144(5)(a), not inconsistent with these Rules.
Section 2. Hearing Panel or Hearing Officer.
Section 2.01. Hearing Panel and Hearing Officer. Pursuant to MCA 2-2-144, the Board must
preside over an ethics hearing as a three (3) member hearing panel. Unless otherwise decided by
a vote of the Board, the Board Chair must be the presiding hearing officer. The Board, in
accordance with 2.03.600.B.3, BMC, may appoint a hearing officer.
Section 2.02. Duties and Powers. The hearing panel or hearing officer retains all the duties and
powers established under Chapter 2, Article 3, Division 5 of the Bozeman Municipal Code, and
title 2, chapter 2, part 1, of the Montana Code Annotated. The hearing panel or hearing officer
must conduct a fair and impartial hearing and take all action necessary to avoid delay in the
proceedings. The provisions of 2.02.120, BMC (decorum), are applicable to Board hearings. In
furtherance of these duties, the hearing panel or hearing officer has powers including but not
limited to:
A. Administering oaths and swearing of witnesses;
B. Ruling upon and receiving evidence;
C. Overseeing pre-hearing and hearing proceedings, including scheduling and
continuing deadlines and hearings;
D. Examining witnesses;
E. Issuing written factual findings and conclusions; and
F. Exercising any power necessary to fulfill its duties as a hearing panel or officer.
Section 3. Hearing Rules.
Section 3.01. Open Hearing. All ethics hearings are open to the public and subject to open
meeting laws. The presiding hearing officer may close the hearing during the time the discussion
relates to a matter of individual privacy, and then if and only if the presiding hearing officer
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determines that the demands of individual privacy clearly exceed the merits of public disclosure.
The right of individual privacy may be waived by the individual about whom the discussion
pertains, and, in that event, the meeting must remain open.
Section 3.02. Notice. The Board must provide the parties timely notice of an ethics hearing. The
notice must include the time and place of the ethics hearing. Pursuant to MCA 7-1-4135, the
official posting place for ethics hearing notices is on the posting board in the lobby of City Hall
located at 121 North Rouse Avenue, Bozeman, Montana.
Section 3.03. Recording of Meetings. Pursuant to MCA 2-3-212, all ethics hearings must be
recorded. The recordings and hearing minutes must be available to the public. If a hearing is
closed pursuant to Sec. 3.01 of these Rules, the recording and minutes from the closed hearing
are only publicly available pursuant to a court order. The State of Montana records retention
policy applies to all recordings and minutes of ethics hearings.
Section 3.04. Conducting the Hearing. All hearings must be conducted in a fair and impartial
manner. Legal counsel for the hearing panel or hearing officer must be present at the hearing to
advise on procedural matters.
Section 3.05. Continuances. A hearing may be continued upon the Board’s own motion, or by
the request of either party when the Board determines reasonable cause exists to justify a
continuance. The Board retains discretion in deciding to continue and re-scheduling a hearing. If
a continuance is granted, unless the hearing has been continued at the scheduled hearing to a date
certain, a new notice must be issued pursuant to Sec. 3.02 of these Rules.
Section 3.06. Hearing Format. The hearing panel or hearing officer has discretion to establish
the hearing format. At a minimum, the ethics hearing must include a total of ten (10) minutes for
each party to present both its case and response. The hearing panel or hearing officer must
provide the parties with notice of the hearing format. This notice must be provided to the parties
no later than ten (10) working days before the scheduled hearing.
Section 3.07. Principles of Evidence during an Ethics Hearing. The following principles
apply to evidence in a formal ethics hearing:
A. Except for the rules governing privilege, the Montana Rules of Evidence do not apply
during an ethics hearing.
B. Only the complainant, respondent, and the hearing panel or hearing officer are permitted
to present evidence.
C. Only the complainant, respondent, and the hearing panel or hearing officer are permitted
to call and confront witnesses. All witnesses must be sworn in before giving testimony.
D. Only the complainant and respondent are permitted to make objections during a hearing.
The hearing panel or hearing officer retains full discretion in deciding on the
admissibility of evidence. If evidence is admitted, the hearing panel or hearing officer
must include it in the official hearing record.
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E. The hearing panel or hearing officer must only rely on credible and relevant evidence.
Physical evidence must be admitted to the hearing record.
F. The complainant must prove the allegations in the complaint by clear and convincing
evidence. “Clear and convincing” means evidence in which there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence. It is
more than a preponderance of evidence, but less than beyond a reasonable doubt. It may
be proved by direct or circumstantial evidence.
G. The hearing panel or hearing officer may, at any time during the pre-hearing and hearing
procedures, take official notice of relevant laws, regulations, judicially recognizable
facts, generally recognized facts of common knowledge to the public and physical,
technical, or scientific facts within its specialized knowledge.
H. When issuing its written findings and conclusions the hearing panel or hearing officer
retains full discretion to accept or reject evidence offered by either party at the ethics
hearing.
I. To ensure the hearing is fair and impartial, the hearing panel or hearing officer is not
permitted to consider public comment when deciding if an ethics violation has occurred
under the provisions of Chapter 2, Article 3, Division 5 of the Bozeman Municipal
Code, and/or provisions of title 2, chapter 2, part 1 of Montana Code Annotated (MCA
2-2-101 et seq.).
Section 3.08. Conduct of the Parties. At an ethics hearing, each party may be:
A. Represented by counsel of their own choosing;
B. Present evidence in support of or against the allegations;
C. Examine all documents and records obtained or prepared by the hearing panel or
hearing officer in response to the allegations;
D. Call witnesses;
E. Confront any witnesses called by the other party or the hearing panel or hearing officer;
and
F. Notified of any exculpatory evidence the hearing panel or hearing officer obtains.
Neither party is permitted to call the other party as part of their presentation of evidence but both
parties are permitted to cross-examine should the other party testify.
Section 3.09. Ex Parte Communications. Ethics hearings are subject to the rules of Ex parte
communications found in 2.03.660, BMC.
Section 4. Conclusion of the Ethics Hearing.
Section 4.01. At the close of the ethics hearing, no other evidence or testimony is permitted into
the record unless authorized by the hearing panel or hearing officer.
Section 4.02. At the close of the ethics hearing but before a final decision is issued, the hearing
panel or hearing officer may reopen the record to obtain additional information. The additional
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information may include filing proposed findings of fact with the city clerk for the hearing panel
or hearing officer’s review.
Section 4.03. The hearing panel or hearing officer must issue its written factual findings and
conclusions as soon as possible after closing the record.
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