HomeMy WebLinkAbout25- Ordinances 2025-02 - Revising Bozeman Municipal Code of Ethics SectionsVersion February 2023 Ord 2025-02 Page 1 of 10 ORDINANCE 2025-02 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 Docusign Envelope ID: A992C416-3638-416F-AC60-29CE5B9B2A1F Ordinance (Revising the Bozeman Code of Ethics) Page 2 of 10 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: Docusign Envelope ID: A992C416-3638-416F-AC60-29CE5B9B2A1F Ordinance (Revising the Bozeman Code of Ethics) Page 3 of 10 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 Docusign Envelope ID: A992C416-3638-416F-AC60-29CE5B9B2A1F Ordinance (Revising the Bozeman Code of Ethics) Page 4 of 10 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; Docusign Envelope ID: A992C416-3638-416F-AC60-29CE5B9B2A1F Ordinance (Revising the Bozeman Code of Ethics) Page 5 of 10 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. Docusign Envelope ID: A992C416-3638-416F-AC60-29CE5B9B2A1F Ordinance (Revising the Bozeman Code of Ethics) Page 6 of 10 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. Docusign Envelope ID: A992C416-3638-416F-AC60-29CE5B9B2A1F Ordinance (Revising the Bozeman Code of Ethics) Page 7 of 10 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; Docusign Envelope ID: A992C416-3638-416F-AC60-29CE5B9B2A1F Ordinance (Revising the Bozeman Code of Ethics) Page 8 of 10 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. Docusign Envelope ID: A992C416-3638-416F-AC60-29CE5B9B2A1F 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__. _________________________________ Docusign Envelope ID: A992C416-3638-416F-AC60-29CE5B9B2A1F February4th 25 25th 25 25 March 27thFebruary Ordinance (Revising the Bozeman Code of Ethics) Page 10 of 10 Terry Cunningham Mayor ATTEST: _______________________________ MIKE MAAS City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney Docusign Envelope ID: A992C416-3638-416F-AC60-29CE5B9B2A1F