HomeMy WebLinkAboutPotential Amendments to the City's Ethics Ordinance G 9'�
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Commission Memorandum
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REPORT TO: Honorable Mayor and City Commission
FROM: Chris Kukulski, City Manager
SUBJECT: Potential amendments to the City's Ethics Ordinance
MEETING DATE: October 13th, 2008
RECOMMENDATION: That the City Commission provide staff clear direction regarding the
following four questions:
1. Does the Commission want to extend the deadline for the Ethics Board to
complete an ethics handbook'?
2. Does the Commission want to exclude from membership only elected or
appointed officials of the City of Bozeman? (This would allow elected or appointed
officials of the school board and Gallatin County to serve on the Ethics Board.)
3. Does the Commission want to continue the 12-month prohibition that would
prohibit present employees and officers within the City from appearing before the City
Commission or processing work for clients'?
4. Is the disclosure of financial assets and liabilities of public officers and employees
necessary or does the Commission want to identify economic relationships and prevent
decision makers from supervising companies in which they have an economic
relationship?
BACKGROUND: The attached memo from Interim Attorney Planalp is a follow-up to the
Commissions discussions on September 2, 2008. In that discussion the Commission expressed
some concerns regarding the City's newly adopted ethics ordinance, in particular the difficulty
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the City is having finding qualified volunteers to sit on this critical board. With that in mind, I
asked Mr. Planalp to review the entire ordinance and identify any other items he felt were worthy
of reconsideration.
FISCAL EFFECTS: None
ALTERNATIVES: As suggested by the City Commission.
Respectfully submitted,
Chris A. Kukulski, City Manager
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MEMORANDUM
To: City Manager
From: Interim Attorney J. Robert Planalp
Date: October 3, 2008
Subject: Proposed Amendments to Ethics Ordinance
At the September 2,2008 City Commission meeting,a motion was made and approved with
staff asked to look at the ordinance. The initial reason to possibly amend the ordinance was
to allow residents of the City who may hold other elected public offices to qualify as a
member of the Board of Ethics.
The discussion in the Minutes of the Commission stated that sounded like a good opportunity
to look at the ordinance again. This memo is a response to that directive.
1. Qualifications for Members of the Ethics Committee.
A state statute provides a local government may establish a three member panel to review
complaints alleging violations of the state statute regarding ethics allegedly violated by
officers and employees of local government. There are no qualifications in that statute for a
member of that panel. As there is no discussion of membership requirements for the ethics
board in state statute, I examined the city charter for such requirement. Article VII,Section
7.01(b) of the Charter discusses no qualifications for membership on the board other than it
provides, "The City Commission shall, by ordinance, establish an independent Board of
Ethics pursuant to state law."I interpret"independent"to prohibit any employee,official or
officer of the City of Bozeman from membership on the board.
Therefore, it is permissible that Section 2,01.120 "Board of Ethics', Subparagraph A be
amended as follows:
Create a Board of Ethics consisting of three(3)members who are residents of
the City and shall serve without compensation unless the governing body
provides otherwise. Members of the Board of Ethics shall not be elected
officials of the City,persons appointed to elective office of the City,full fifne
appointed officials of the City, whether exempt or non-exempt, City
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employees, nor shall they be currently serving on any other City board or
commission.
The effect of this proposed change expands the field of candidates to include elective and
appointed officials of Gallatin County and Bozeman School District No.7 who reside in the
city.
If my proposed amendment is acceptable, subparagraph (b) should be repealed. That
paragraph provides, "Members of the Board shall be residents of the City and shall hold no
elected public office nor any other City office or employment."
2. Analysis of Other Provisions of Ordinance 1726.
In addition to establishing the Board of Ethics, this ordinance established the following for
the Board of Ethics; establish who appointed the board members;provided for members to
select a presiding officer; provided the terms of members; provided that staff support
provided and designated the city attorney with substantial responsibilities to the board;
established duties and powers of the board; designated who may request board action;
provided limitation on the board's power;provided manner for city attorney opinions both
informal and formal and established procedures for hearing complaints.
There were three other provisions in the Bozeman ethics governance enacted by Ordinance
1726. The ordinance required the Ethics Board prepare for approval by the City Commission
a financial disclosure statement form for approval by the City Commission,
recommendations for filing deadlines and procedures for who must file the disclosure form.
The enacted ordinance prohibited certain post employment activities. For 12 months after
termination of employment, a public servant is prohibited from formal or informal
appearances at board activities or City Commission meetings for clients when that public
servant had direct responsibility for decisions of that board or commission.
I do not know what the intent or purpose is for this prohibition. However,it will prohibit a
public servant for a period of 12 months after succession of such employment such as (a)
Susan Wordal hiring or undertaking private or public defender defense work; Tim Cooper
retiring and in private practice representing a civil client in any matter involving the City
Commission,any city commissioner after retirement appearing before the City Commission
for compensation for an employer or client; a former City Commissioner appearing before
the Commission for any matter such as zoning,budget matters or any neighborhood concern.
Similarly, it would prohibit present employees such as engineers or planners from
representing clients in processing applications through the City.
The existing ordinance is more restrictive than state law. State law prohibits a public officer
or employee within 12 months following voluntary termination of office or employment to
obtain employment that will take direct advantage, unavailable to others, of matters with
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which the employee or officer was directly involved during the term of office or employment
(see 2-2-105(3),MCA).The existing ordinance is more restrictive than state law in that state
law prohibits a former employee who voluntarily terminates employment,for a period of six
months, from contracting with or being employed by an employer who contracts with the
City involving matters with which the former employee was directly involved during
employment.
Among the powers and duties of the Board are to make available to the public the financial
disclosure statements of employees and officials and by December 13, 2007 submit to the
City Commission for approval an ethics handbook for the use of all public servants and the
public. I recommend that date either be extended or the concept of a deadline omitted.
The ordinance also(2,01.140)provides any person may file a complaint with the board,any
public servant,prospective public servant or fonner public servant may request ofthe board
an ethics opinion whether a formal opinion or confidential advisory opinion regarding the
propriety of any matter or matters to which the person is or may become a party. Further,any
decision maker with the consent ofprospective appointee may request of the board an ethics
opinion regarding the propriety of any matter to which the public servant, the prospective
public servant or former public servant is or may be a party.
The ordinance provides the city attorney shall provide the requested formal or advisory
opinions. I need to know if the City Commission approves of the significant amount of
increased workload providing such opinions will cause. The existing ordinance requires the
city attorney's office to provide assistance to the Ethics Board and allows all public
employees plus prospective and former public servants to request opinions of the Board
which opinions would be prepared by the city attorneys office. I want to understand if the
City Commission wants this role for the city attorney's office given the potential for
substantial increase workload.
Financial Disclosure Statement
I have examined a draft financial disclosure statement. State law provides insight into the
Legislature's definition of an adequate financial disclosure. Section 2-2-106,MCA,provides
that each state office holder or holdover senator,each candidate for statewide or state office
elected from a district or an individual appointed to an office such as the above shall file a
business disclosure statement with the Commissioner of Political Practices.
The statement must provide the following:
1. Name, address and type of business of the individual.
2. Each present or past employing entity from which benefits,including retirement
benefits, are currently received by the individual.
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3. Each business, firm, corporation, partnership or other business or professional
entity or trust in which the individual holds an interest.
4. Each entity not listed under the above sections in which the individual is an
officer or director,regardless of whether or not the entity is organized for profit.
5. All real property other than a personal residence in which the individual holds an
interest. Real property may be described by general description.
Section 2-2-104,MCA,provides rules of conduct for public officers and public employees
the breach of which results in a breach of public duty. Section 2-2-105, MCA, provides
ethical requirements for public officers and public employees the breach of which constitutes
a breach of public trust and public duty of office or employment in local government.
Section 2-2-121, MCA, are rules of conduct for public officers and public employees the
breach of which is a breach of public duty.
It is my recommendation an ordinance be enacted for the Board of Ethics to develop a
statement to be signed upon initial employment and thereafter annuallyby each public officer
and public employee that she or he has read the statement and which would contain a
layman's summary of each section of state law. The statement should include the promise
during the previous year the public officer or public employee has not committed an act and
promise not to perfonn an act that would constitute a breach of the provisions summarized in
this disclosure.
A benefit of such statement and example of such a benefit can be found in 2-2-121, MCA.
That statute prohibits a public officer or employee from engaging in a substantial financial
transaction for the officer's or the employee's private business purposes with a person whom
the officer or employee inspects or supervises in the course of his official duties. This
section,for example,prohibits a public officer or employee from performing an official act
directly and substantially affecting to its economic benefit a business or other undertaking in
which the officer or employee either has a substantial financial interest or is engaged as
counsel, consultant,representative or agent.
With that framework in mind,I recommend a written financial disclosure statement,if one is
deemed necessary by the Commission,should be completed annually by onlymembers of the
City Commission,the City Manager,department heads and major financial decision makers
which include members of the Library Board and the Parking Commission. I recommend
rather than identifying assets owned by these individuals,the disclosure require identification
of economic relationships similar to elected state officials must already disclose. I would
focus on the economic transactions the departments conduct with its suppliers and
contractors rather than assets ownership. For example, the disclosure I have examined
requires reporting by the public servant of all securities having a value of over$5,000, The
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disclosure I saw requires the public servant to disclose the name of any creditor the public
servant owes more than $5,000. Personal residences are excluded.
Rather, 1 propose each department annually develop and then review a list of vendors and
service providers to that department who provide through contract, purchase order or
otherwise services and vendors periodically, for example, $2,500 each month and less
fi•equently$10,000 per year. Each member of the department that receives these services or
goods must disclose if he or she has an economic relationship with that vendor. If the
decision maker has a substantial economic relationship with that vendor,that decision maker
may not make decisions regarding that vendor.
In summary and in preparation for our meeting later this week,the following questions may
be posed to the City Commission:
1. Does the Commission want to extend the deadline for the Ethics Board to
complete an ethics handbook?
2. Does the Commission want to exclude from membership only elected or
appointed officials of the City of Bozeman? (This would allow elected or
appointed officials of the school board and Gallatin County to serve on the Ethics
Board.)
3. Does the Commission want to continue the 12-month prohibition that would
prohibit present employees and officers within the City from appearing before the
City Commission or processing work for clients?
4. Is the disclosure of financial assets and liabilities of public officers and
employees necessary or does the Commission want to identify economic
relationships and prevent decision makers from supervising companies in which
they have an economic relationship?
J. Robert Planalp
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ORDINANCE NO. 1726
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
BOZEMAN, MONTANA PROVIDING THAT THE BOZEMAN
MUNICIPAL CODE BE AMENDED BY REVISING CHAPTER 2.01 OF
SAID CODE; PROVIDING FOR THE AMENDMENT OF CHAPTER
2.01 TO CONFORM TO THE ADOPTED BOZEMAN CHARTER BY
ADDING NEW SECTIONS ON FINANCIAL DISCLOSURE, POST
EMPLOYMENT PROHIBITIONS AND CREATION OF ETHICS
BOARD AND AMENDING SECTIONS 2.101.020,DEFINITIONS,AND
2.01.040, STANDARDS OF CONDUCT.
BE IT ORDAINED by the City Commission of the City of Bozeman, Montana:
Section 1
That Chapter 2.01 of the Bozeman Municipal Code be amended so that Bozeman
Municipal Code Chapter 2.01 shall read:
"2.01.010 Declaration of Policy
The proper operation of the city government requires that public officials and employees
be independent, impartial, and responsible;that governmental policies and decisions be made in
the proper channels of the governmental structure;that public office and employment not be used
for personal gain; and that the public have confidence in the integrity of its government. 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 and effective public service, and to prohibit conflict
between public duty and private interest. Nothing herein shall be construed to relieve any
employee or official of the responsibilities set forth in Sections 2-2-104,2-2-105,2-2-125,2-2-
131, and 7-5-4109 of the Montana Code Annotated.
2.01.020 Definitions
As used in this chapter,the following terms shall have the following meanings,unless
the context clearly indicates that a different meaning is intended:
A. "Agency" means the City Commission and all other agencies,board, committees,
departments, and offices of the city,without exception.
B."City" means the "City of Bozeman",Montana.
C. "Confidential information"means any information which is not available to the
general public and which is obtained only by reason of an official's or employee's
position.
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D. "Employee" means all individuals employed by the City and its agencies,but does
not include independent contractors hired by the City, City Commissioners, or any
Municipal Judge.
E. "Financial interest"means any ownership interest, contractual relationship,business
relationship, or other interest which will result in a monetary or other material
benefit to an official or employee, either tangibly or intangibly, which has a value
of more than fifteen dollars, other than his or her duly authorized salary or
compensation for his services to the city, and which interest is not common to the
interest of all other citizens of the city. The following financial interest shall be
imputed to be those of an official or an employee of the city:
that of a spouse or child of an official or employee;that of any prime
contractor or subcontractor of the city,in which the official or
employee or any member of his or her immediate family has any
direct or indirect interest as the proprietor,by ownership of stock or
partnership interest.
F. "Immediate family" means spouse and children.
G. "Officials" means all officers and members of the city's agencies, whether elected or
appointed,whether paid or unpaid,whether permanent, temporary, or alternate, and
that are not employees.
11. "Personal interest" means any interest in the matter which would affect the action of
the official or employee other than a financial interest, and other than an interest
because of membership in, or affiliation with,but not employment by a social,
fraternal,charitable, service,educational,religious,governmental,health service,
philanthropic,cultural, or similar nonprofit institution or organization.
I. "Public servant"means officials and emnloyee as defined in this section.
1. "Transaction" means the offer of,or the sale,purchase,or furnishing of, any real or
personal property or services, by or to any person or entity directly or indirectly, as
vendor or vendee,prime contractor, subcontractor, or otherwise, for the use and
benefit of the city or of such other person or entity for a valuable consideration.
2.01.030 Persons Covered
All city officials and employees shall be bound by this chapter.
2.01.040 Standards of Conduct
A. Officials and employees have an obligation to act morally and honestly in
discharging their responsibilities.
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B. Officials and employees shall conduct themselves with propriety, discharge their
duties impartially and fairly, and make continuing efforts toward attaining and
maintaining high standards of conduct.
C. Each official or employee serving on a multimember agency is expected to devote
the time and effort necessary to the successful functioning of such agency.
D.No official or employee shall improperly use, directly or indirectly, his city position
to secure any financial interest or personal interest for himself or others.
E. No official or employee shall, for any reason,use or attempt to use his position to
improperly influence any other official or employee in the performance of his
official duties.
F. No employee shall act in a private capacity on matters that they are directly
responsible for as an employee,
G.No official shall act in a private capacity on matters acted upon as an official
2.01.050 Use of City Resources
No official or employee shall use,or permit the use of,city-owned vehicles, equipment,material,
or city personnel for personal use of the employee or official or anyone else or to be used in any manner
prohibited by state statutes or city ordinance. No city automobile shall be used by a city employee or
official going to or from home, except when such use is for the benefit of the city, as in the case of an
employee on call outside of the employee's working hours.
2.01.060 Treatment of the Public
City officials and employees represent the city government to the public. In their contact with
the public, officials and employees must bear in mind their role as public servants. Each member of the
public should be treated courteously, impartially, and fairly.
2.01.070 Conflict of Interest
A.No official or employee shall engage in any employment or business which conflicts with
the proper discharge of his official duties.
B. No official or employee shall have a financial or personal interest,tangibly or intangibly, in
any transaction with the City as to which he has the power to take or influence official
action unless full public disclosure is made. If an official or employee has any tangible or
intangible financial or personal interest in the outcome of any matter coming before the
agency of which he is a member or by which he is employed, such official or employee
shall publicly disclose on the record of the agency, or to his superior or other appropriate
authority,the existence of such financial or personal interest. An official or employee
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having such a financial or personal interest shall not engage in deliberations concerning the
matter, shall disqualify himself from acting on the matter, and shall not communicate about
such matter with any person who will participate in the action to be taken on such matter.
C. No employee,whether paid or unpaid, shall represent or appear on behalf of any individual
or entity before any agency of the city, or take any appellate proceedings from any action of
such agency, either personally or through an associate or partner.
D.No official,whether paid or unpaid, shall represent or appear on behalf of any individual or
entity in any action or proceeding of concern to the agency on which that official serves,
either before that agency or any other agency of the city, or before the City Commission,or
take any appellate proceedings from any action of such agency or the Commission. Such
representation may be made by an official's associate or partner,provided no reference to
the participation of the involved official is made except for certification or other required
identification on prepared documents. The involved official shall not engage in
deliberations concerning a matter represented by an associate or partner, shall disqualify
himself from acting on the matter,and shall not communicate about such matter with any
person who will participate in the action to be taken on such matter.
E. Nothing in this section shall be interpreted or construed to prohibit any official or employee
from exercising his legal rights as to his own personal interests in a matter pending before
the City or any of its agencies, or to prohibit an official or employee from testifying as a
witness in any administrative or judicial proceeding. However, no official or employee
who represents his own personal interest before an agency of which he is a member, or a
member of an agency to which the matter may be appealed, shall participate in the decision
of that agency or the appellate agency.
2.01.080 Confidential Information
A.No official or employee shall,without legal authority, disclose confidential information
concerning the personnel, property, government, or affairs of the city.
B. No official or employee shall use confidential information to advance his own financial or
personal interest or the financial or personal interests of any other person.
C. Nothing in this section shall be interpreted as prohibiting the disclosure of information
required by law to be disclosed.
2.01.090 Gifts, Gratuities, and Favors
No official or employee shall accept a gift, gratuity, or favor from any person or entity, except as
authorized by law.
2.01.100 Financial Disclosure Statement.
The Ethics Board shall prepare for approval b the Commission a financial disclosure statement
form, and recommendations for filling deadlines,procedures, and who must file.
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2.01.110. Post Employment Activities.
No former public servant:
A. during the 12 months following the date on which he or she ceases to be a public servant may
for corn ensation on behalf of an person other than a izovernmenW entity,make my formal or
informal appearance before,or negotiate with any decision maker in connection with any matter
which might give rise to a Judicial or quasi-judicial proceeding and which was under the public
servant's direct responsibilrtv as a public servant within 12 months prior to the date on which he
or she ceased to be a public servant,
B. may, for compensation, act on behalf of any party other than the City in connection with any
matter in which the former public servant participated personally and substantially as a public
servant and which might give rise to a judicial or quasi-judicial proceeding involving the City-
C. shall use or continue to use any former official City title including use on business cards or
stationary, following termination of employment with the Cijy, except that such use is not
prohibited if the public servant indicates that the employment with the City was former to
current employment.
2.01.120. Board of Ethics.
A. There is created a Board of Ethics consisting of three(3)members who are residents of the Citv
and shall serve without compensation unless the governing body provides otherwise
Members of the Board of Ethics shall not be elected officials persons appointed to elective
office, full-time appointed 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 and shall hold no elected public office nor
any other City office or employment.
C. Board members shall be appointed by the governing body. An appointment to fill a vacancy
shall be made by the 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(2)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(3)years and thereafter for a term of
one(1)year.
F. The governing body shall provide such staff support for the Board as the governing bodX
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 Mayor,the City Manager,or the governing body.
The City Clerk shall serve as Recording Secretary to the Board and shall provide such
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administrative services to the Board as may be necessary. Neither the City Attomey nor the
Ciy Clerk shall be eligible for appointment as board members.
2.01.130. Duties and Powers of the Board.
A. The Board shall,in addition to its other duties:
(1) adopt written rules goveming its procedures and providing for the holding of rem
and special meetings,which rules shall be subject to the approval of the governing body a
copy of the rules shall be filed with the City Clerk; and
(2) administer oaths;
(3) conduct hearings as needed to hear and decide specific cases in which a violation of
this Chapter or a violation of Title 2, Chapter 2, Part 100 of Montana Code Annotated 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 ovg erring body
concerning its action in the preceding year;the report shall contain
(i) a summary of its decisions and opinions, both open and confidential,• the
Board shall make an alterations in the summaries necessM to prevent disclosure of an
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
(ii) 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 Chapter, which shall include an annual
review of the full scope of operations of the Board and its procedures,and which shall insure
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 Chapter• and
(7) when it deems it appropriate,request the Cijy 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 Attomey (unless the
need to retain outside counsel is caused by a conflict involving the City Attomey's Office) and
upon approval by the governing body of a contract for services approved as to form by the City
Attorney; and
(9) 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
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this Chapter; and
L10) make financial disclosure statements filed with the Board available for public
inspection and copying facilities available at a charge which is the minimum amount permitted
under applicable law. All open opinions of the Board shall be filed with the City Clerk and are
open to public inspection. To the extent permitted by law, confidential opinions and any
records obtained or filed in connection with requests for confidential opinions whether the
records are written,tape recorded,videotaped or otherwise recorded shall be kepi 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 compile and maintain an index to all financial disclosure statements currently on file
with the Board to facilitate public access to such statements: and
(12) develop a plan for implementation of a program to educate public servants who are
subject to this Ordinance and the public about their rights duties and responsibilities
hereunder, and
(13) within one Year from the effective date of this Ordinance submit to the governing
body for its approval and promulgation an ethics handbook for the use of all public servants
and the public;the personnel department shall document that each City officer and employee
receives a copy of the handbook and acknowledges receipt of the handbook in writin • and
(14) in coordination with the City Attorney City Manager, and other appropriate City
personnel,arrange for the conduct of an annual workshop which shall serve as an orientation
for new Board members and an opportunity for experienced members to explore specific
issues in depth,attendance at this workshop 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 Board may:
(1) conduct hearings as it determines necessary or appropriate
(i) 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
(ii) 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-,
3 render and publish formal opinions on an 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
(4) prepare and publish special reports technical studies and recommendations to further
the purposes of this Ordinance.
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2.01.140. Who May Request Board Action.
A. Au person may file a complaint with the Board and any public servant prospective public
servant or former public servant, either personally or on behalf of an organization or
govemmental 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 any 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.
B. Andrequest for Board action shall be in writing and shall be signed by the person making the
request.
2.01.150. Limitations on Board's Power.
The Board does not have the authority to reverse or otherwise modify a prior action of the Mayor,
governing body, or an officer or employee of the City. If the Board finds a prior action of the Mayor the
governing body,officer or employee to have been ethically improper,the Board may advise the appropriate
party or parties that the action should be reconsidered 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
Attomgy's Office shall report its findings to the Board.
2.01.160. City Attorney Opinions
A. at the request of a person,the City Attorney may render an informal or formal advisoryopinion with
respect to the prospective conduct of such person. An informal advisory opinion need not be
written, and may be provided directly to the requestor of such opinion A request for a formal
advisory opinion must be in writing and include all the information and documents related to the
request. The request for either an informal or formal advisory opinion must state all the material
facts so the City Attorney may render a complete and correct opinion The City Attome's
formal advisory opinion must be in writing. Nothing in this Chapter shall be construed to
prohibit a request for an opinion by any public servant from the City Attorney regarding a
potential conflict of interest. Neither a request for an informal or formal advisory opinion nor
the making of a statement concerning a potential conflict of interest made by a member of the
City Commission in the course of abstaining from voting or making a motion of self-recusal
shall create a presumption or inference that a public servant actually has a personal interest in the
matter about which the opinion was requested;if the City Attorney elects to render an opinion
the City Attorney shall,within a reasonable time submit a written summary of the opinion to the
Ethics Board for the Board's information; if the CjjY Attorney declines to render an opinion
nothing shall preclude the person requesting the opinion from requesting the Ethics Board for an
opinion.
B. Any_ formal advisory opinion issued pursuant to Section 2.01.160 maybe relied upon by the person
directly involved in the specific transaction or activity to which such advisory opinion has been
issued; and any person directly involved in any specific transaction or actives which is
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indistinguishable in all its material aspects from the transaction or activity with respect to which
such adyisor,Lpinion was rendered.
C. Any person who relies upon a formal advisory opinion pursuant to this section and who acts in good
faith in accordance with the provisions and findings of such opinion shall not as a result to such
act,be subiect to prosecution under this Chapter or,in the case where the opinion is exculpatory
be subject to any administrative adverse action or civil action based upon legal authority cited in
that opinion.
D. The City Attomey's client is the City of Bozeman and not the individual requesting the opinion No
request for an opinion from the City Attorney shall constitute the establishment of an attorney_
client relationship with the individual requesting the opinion
2.01.170. Procedures for Hearing Complaints.
A. Any person may file a written complaint, signed and sworn with the City Clerk alleging a
violation of this Chapter or a violation of Title 2 Chapter 2 Part 100 of Montana Code
Annotated.
B. A complaint shall specify the provisions of this Chapter or provisions of Title 2 Chapter 2 Part
100 of Montana Code Annotated alleged to have been violated and facts alleged to constitute
the violation.
C. Upon receipt of such a complaint, but in any event not later than three (3) working days after
receipt, the City Clerk shall acknowledge receipt to the complainant(s) and forward the
complaint simultaneously to the Board, the person who is complained against and the City
Attorney.
D. The City Attorney shall provide the Board with a preliminary written analysis of the complaint
no later than thirty(30) days from the date the complaint is filed with the City CIerk
E. During any investigation and during any hearing which is conducted to determine whether a
violation of this Chapter or a violation of Title 2 Chapter 2 Part 100 of Montana Code
Annotated has occurred
(1) the person under investigation or the accused may be represented by counsel of his or
her own choosing`
(2) the accused or his or her representative if any, shall have an opportunity to
(i) challenge the sufficiency of any complaint which has been filed against him or
her,• and
(ii) examine all documents and records obtained or prepared by the Board in
connection with the matter heard, and
(iii) bring witnesses:and
(iv) establish all pertinent facts and circumstances,• and
(v) question or refute testimony or evidence including the opportunity to confront
and cross-examine adverse witnesses: and
(vi) exercise,to the extent the Board,in its discretion determines to be just and
reasonable, any pretrial discovery procedure usually available in civil actions
F. The following principles shall apply to evidence in connection with hearings conducted by the
Board:
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(1) The Board shall not be bound to adhere to statutory Rules of Evidence but shall be
fundamentally fair in its administration of evidence; and
(2) During any hearing conducted by the Board to determine whether a violation of this
Ordinance 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
(3) The accused or any other person under investigation shall be afforded adequate
opportunity to rebut or offer countervailing evidence; and
(4) The Board shall inform the accused or his or her counsel of exculpatory evidence in
its possession; and
(5) The standard of evidence in hearings conducted under this Chanter shall be clear and
convincing evidence admitted at the hearing. ^�
G. The Board, in addition to its other duties and powers, mu:
(1) appoint a hearing officer to conduct hearings under this Chapter• and
(2) with the approval of the goveming body, 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 goveming body of a contract for services approved as to fora by the City Attomey• and
(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;and
(4) require any person to submit in writing such reports and answers to questions relevant
to the proceedings conducted under this Chapter 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 pennitted under state law regarding all
persons who are the subject of such investi ation.
H. The person complained against shall have twenty (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 know address in City Records or personal service.
I. If the complaint is dismissed,the complainants) shall have one opportunity within fifteen(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 his or her own behalf or have a
representative appear to so testify,and the Board may Permit an 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 thirty(30)days whichever is sooner,following receipt of
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the City Attorney's analysis the Board shall review and consider the complaint and the City
Attorney's analysis,and,if a hearin is to be held shall set a date certain for the hearingto o take
place within thirty(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:
(i) the complaint does not allege facts sufficient to constitute a violation of this
Chapter or a violation of Title 2 Chapter 2 Part 100 of Montana Code Annotated, or
(ii) the Board has no iurisdiction 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 and
(2) determine that no violation of this Chapter or a violation of Title 2 Chapter 2 Part
100 of Montana Code Annotated has occurred: or
(3) determine that the complaint alleges facts sufficient to constitute a violation of this
Chapter or a violation of Title 2,Chapter 2 Part 100 of Montana Code Annotated 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 theDarty 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 Chanter
or a violation of Title 2, Chanter 2 Part 100 of Montana Code Annotated,• and
(i) conduct its own investigation with respect to any alleged violation-, or
(ii) 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
(iii) refer the complaint to any appropriate authorities for criminal investigation;or
(iv) refer the complaint if it appears to be substantiated to the coun attomev or
city attorney for prosecution; or
(v) refer the complaint, along with the Board's findings and conclusions to any
appropriate administrative authority for disciplinM 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 Chapter; 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 governing body, 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 cib laws governing confidentiality, open government and torts All such reports
shall be reviewed by the City AttorneVprior to their issuance
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2.01.180. Those Subiect to Removal Only by the Governing Body.
If findings relative to an elected or appointed official are filed by the Board with the Povernine body,
the governing body may take action to remove the official in accordance with state law.
2.01.190. Ex Parte Communications.
A. After a complaint has been filed and during the pendency of a complaint before the Board no
member of the Board may communicate directly or indirectly with any party or other person
about any issue of fact or law regarding the complaint, except that
(1) the members of the Board may obtain legal advice from the City Attorney (or retained
counsel) and may discuss the complaint with their staff,and
(2) the members of the Board may discuss the complaint at a lawfully conducted meeting
B. If any person attempts to communicate with a Board member regarding the pending complaint
the Board member shall report the substance of the communication to the Board on the public
record at the next regular meeting of the Board.
2.01.200. 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,
2.01.210. Waiver of Confidentiality.
A person who makes or purports to make public the substance of or M portion of an advisory
opinion requested by or on behalf of that person is deemed to have waived the confidentiality of the request
for an advisory opinion and of any records obtained or prepared by the Board in connection with the request
for an advisory opinion.
2.01.220. Statute of Limitations.
No action may be taken on any complaint which is filed later than one year after a violation of this
Chapter is alleged to have occurred,and a complaint alleging a violation must be filed within one year from
the date the complainants)knew or should have known of the action alleged to be a violation."
Section 2
Repealer
All resolutions, ordinances and sections of the Bozeman Municipal Code and parts thereof in
conflict herewith are hereby repealed.
Section 3
Savings Provision
142r
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.
Section 4
SeverabiIity
If any portion of this ordinance or the application thereof to any person or circumstances is held
invalid,such invalidity shall not affect other provisions of this ordinance which may be given effect without
the invalid provisions or application and, to this end, the provisions of this ordinance are declared to be
severable.
Section 5
Effective Date
This ordinance shall be in full force and effect thirty (30) days after final adoption.
PASSED by the City Commission of the City of Bozeman.Montana,on first reading,at a regular
session thereof held on the 131h day of November 2007.
C�
JEF Y RA SS, Mayor
ATTEST:
dm(-)�'
S AC LME
City Clerk
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 261h of November 2007.
ATTEST: JE K. k i&�U—SS,Mayor
Ai � (16LD
TACY2LME-TAJC
ity Cle
APPROVE- TO ORM:
P UL J. L
City Attor�n�y
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