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HomeMy WebLinkAbout07-22-09 Board of Ethics MinutesLINKED MINUTES OF THE MEETING OF THE BOARD OF ETHICS BOZEMAN, MONTANA July 22, 2009 Please Note: The audio recording of this meeting is available. These minutes are not word for word and should be considered in addition to the audio of the meeting. The Board of Ethics of the City of Bozeman met in the Commission Room, City Hall at 121 North Rouse on Wednesday, July 22, 2009. Present were Board members Melissa Frost, Rodger McCormick and Stephen Schultz, as well as City Manager Chris Kukulski, City Attorney Greg Sullivan, City Clerk Stacy Ulmen and Deputy City Clerk Aimee Kissel. 0:00:24 A. Meeting Called to Order Stacy Ulmen, Bozeman City Clerk called the first meeting of the Board of Ethics to order on July 22, 2009 at 7:02 p.m. 0:00:34 B. Election of Presiding Officer Stacy Ulmen informed board members that the first point of business was the election of a presiding officer. After discussion, all three members volunteered for the position. Since an election would result in a three way tie, the board chose to randomly select the presiding officer by having City Attorney Greg Sullivan choose a name from a cup. The person thus chosen was Melissa (Mel) Frost. 0:04:40 Motion and vote to elect Melissa Frost as the Presiding Officer of the Board of Ethics. It was moved by Stephen Schultz, seconded by Rodger McCormick to appoint Melissa Frost as the presiding officer of the Board of Ethics. Those voting Ave being Mr. Schultz, Mr. McCormick and Ms. Frost. Those voting No being none. The motion passed 3-0. 0:06:09 C. Public Comment Mel Frost opened public comment. Minutes of dhe Board of Ethics, July 22, 2009 No person commented. Mel Frost closed public comment. 0:06:53 D. Information from the City Clerk and Attorney regarding noticing requirements and City staff resources 0:07:30 Chris Kukulski, City Manager Mr. Kukulski introduced himself to the Board members and let them know that the City is very interested in running a professional, ethical organization. The process and set of procedures that the Board will set up will provide a way to determine whether a complaint is valid or not as well as a positive way to continue to raise the bar in the organization. Mr. Kukulski let the board know that he and other staff members will be very accessible to the Board. Mr. Kukulski asked board members if they had questions for Mr. Kukulski. 0:10:37 Mel Frost Ms. Frost asked whether the formation of the board was designated by State Law or the charter. 0:10:41 Greg Sullivan, City Attorney Mr. Sullivan explained that the Bozeman City Charter requires an ethics board and that they have to implement the ethics requirements in the charter through an Ordinance. There is nothing in state law that requires that local governments form an ethics board, rather it was mandated by the Charter, the Cities' Constitution. It was placed in the Charter by the Local Government Study Commission. 0:11:32 Chris Kukulski, City Manager Mr. Kukulski explained the process that the Local Government Study Commission went through working with staff to revise the City Charter and in particular the addition of the Ethics component in that Charter. He also explained that the Ethics portion applies to both City employees as well as elected officials. 0:13:05 Greg Sullivan Mr. Sullivan clarified that State law doesn't mandate the creation of an ethics board but rather authorizes it. 0:13:24 Stephen Schultz Mr. Schultz asked for confirmation that the Board is a passive body that will wait until a complaint comes in and that the board has two roles -one role being a reporting role and the other as an investigative body. 0:14:25 Mr. Kukulski Mr. Kukulski agreed that there is two roles. One would be setting the standards, the pro-active role. Once that has been established it does fall into more of a mode of responding. Minutes of the Board of Ezhacs, July 22, 2009 0:15:35 Greg Sullivan Mr. Sullivan explained how he understands the two roles explaining the Legislative role first, which asks things such as, is this Ordinance a good way to implement things and establishes a process to systematically evaluate all aspects of the administration and implementation of the Chapter. This role also looks at rules within the Ordinance and makes recommendations to the City Commission for amendment to the Ordinance. Within the legislative role is a training aspect, a handbook to be created, a disclosure form to review, looking at the Ordinance then when that is all in place making sure it is all working right and responding when necessary. The other aspect is judicial where the Board takes on the role of a judge. 0:16:58 Stephen Schultz Mr. Schultz asked if the Board of Ethics would be involved in the ethics training offered to Board members and employees. 0:17:04 Mr. Sullivan Mr. Sullivan responded that yes, the Board of Ethics would be involved in the training. 0:17:12 Mr. Kukulski Mr. Kukulski explained that the training and the financial disclosure statement form were handled by city staff up to this point because it took so long to get the Board going and the City did not want to delay those items any longer. The financial disclosure statement has been written by staff but Mr. Kukulski asked the Board of Ethics whether they wanted time to review the form and possibly make changes or whether they would like staff to go forward with submitting the form to the Commission for approval to begin use of the form right away with the idea that the Board could make changes as necessary later. 0:19:13 Mr. Sullivan Mr. Sullivan explained that the Board of Ethics would not be responsible to actually conduct the training because there are lots of great resources available such as the Local Government Center who conducted the recent training. Rather, the board would provide input. 0:19:32 Mr. Kukulski Mr. Kukulski explained that the City will have an opportunity in the spring to host the regional city manager's group in Bozeman. In about 1915, the International City/County Management Association (ICMA) created a code of ethics which has become a fundamental part of this profession. Professionals from Washington DC will come out to conduct training. There will be times we can take advantage of that type of training and the City is obligated to make sure resources are budgeted every year for training. 0:20:32 Stephen Schultz Mr. Schultz asked if it would be recommended or permissible to interview other ethics boards from other municipalities. Minutes of the Board of Ethics, July 22, 2009 0:20:48 Mr. Kukulski Mr. Kukulski stated that contacting other municipalities for their experiences was absolutely permissible. 0:21:09 Stephen Schultz Mr. Schultz asked how research and contacting other municipalities would take place. 0:21:09 Mel Frost Ms. Frost spoke regarding assigning themselves certain tasks and was thinking that they should look at what's already out there in respect to the ethics handbook to be created. 0:21:47 Stephen Schultz Mr. Schultz asked whether there were already complaints that would need to be dealt with right away by the Board. 0:22:00 Mr. Kukulski Mr. Kukulski said there were not. 0:22:06 Mel Frost Ms. Frost asked if there had been ethics complaints in the past. 0:22:08 Greg Sullivan Mr. Sullivan said there have been questions that have come to the City Attorney's office. 0:22:52 Mr. Kukulski Mr. Kukulski explained that the City is on our third attorney in the last 18 months since Paul Luwe retired. The Ethics Ordinance went through all three of those attorneys. 0:23:49 Mr. Kukulski Mr. Kukulski explained that you don't have to re-invent the wheel, but we do like to set the bar instead of just follow it. However, we often look at what other Cities have and see how it might fit our needs and be modified for our use. Sometimes we target the 25 - 50,000 population range, or college towns, looking at municipalities that have similarities. 0:25:49 Stephen Schultz Mr. Schultz asked if there are other towns that you benchmark regularly. 0:26:00 Mr. Sullivan Mr. Sullivan said not necessarily. In the law office sometimes look at Missoula in Billings. 0:26:15 Mr. Kukulski Mr. Kukulski said there are other things we might look to Bend, OR, Flagstaff, AZ or Fort Collins, CO. For each thing, there's a different set out there. There are some towns that look to us especially regarding planning issues. 4 Minutes of the Board of Ethics, Julp 22, 2009 0:27:34 Mr. Sullivan Mr. Sullivan re-iterated that any of that is just a start. Requirements (for a financial disclosure form are located within the) Charter in article 7, section 7.01 under the statement about conflicts of interest and has a mandate within saying, "The Ordinance shall provide for reasonable public disclosure of finances by officials with major decision-making authority over monetary expenditures and contractual and regulatory matters." As a result of the Charter, you can then refer to Ordinance (1759), Section 2.01.100, a section regarding financial disclosure statements. 0:29:46 Stephen Schultz Mr. Schultz felt some trepidation regarding the financial disclosure statement when he listened to the audio from the commission meetings where it was discussed. A discussion then took place about the ambiguity of the meaning of words such as reasonable and major financial decision- maker. 0:31:20 Mr. Kukulski Mr. Kukulski explained that one area of targeted communities for comparison is high growth areas. Asking things like, what conflicts has there been between Commissioners, the Planning Board and city officials. 0:32:06 Mr. Sullivan The financial disclosure statement form that City officials created was handed to Board members and discussed. 0:32:18 Mel Frost Ms. Frost was pleased to see that city employees had come up with this form. 0:32:32 Mr. Sullivan The finance director and personnel director have been working on who will be covered by this form so they can tell the City Clerk's office who must fill this out. The Ordinance lists out some of the folks who are considered decision makers. Mr. Sullivan went through this list. 'Other major financial decision-makers' was not defined in the Charter or Ordinance. And then there's a statement that says 'may include the library board and Parking Commission.' The Business Improvement Districts and TIF Boards may also need to be included. The City has determined that those who are major financial decision makers within the organization are those who sign off on claims. 0:35:46 Mr. Kukulski Mr. Kukulski said that a positive benefit of this requirement has been narrowing down the scope of people who can sign off on claims. All claims have always needed two signatures, one who has claim approval authority and one who just witnessed that the item was received. 0:38:39 Mr. Kukulski Responding to a question from Ms. Frost, Mr. Kukulski stated that the forms would ultimately be Minutes of the Board of Ethics, July 22, 2009 a publicly accessible document. The State of Montana requires a disclosure form for elected officials, so the finance director and personnel director borrowed that form and modified it to fit the Cities needs. Sometime soon the Board of Ethics needs to decide whether they would like the City to go forward with this form as is so it can be implemented sooner rather than later and then make changes to the form at a later date or whether the Board would like time to look the form over and make some changes now. The City just didn't want to be dragging their feet on this issue. 0:40:34 Stephen Schultz Mr. Schultz asked whether there would be any funds spent or approved by this Board. 0:40:42 Mr. Sullivan Mr. Sullivan explained that (the Board of Ethics) would not have claims authority. 0:40:54 Mr. Kukulski Mr. Kukulski explained that the Board does have funding for training and funding for effectively and efficiently doing Board business within the Ordinance. 0:41:28 Ms. Frost Ms. Frost began a discussion with Board members regarding what they would like to do as far as the financial disclosure form. 0:42:02 Mr. Kukulski The City will either need to tell the Commission soon that the Ethics Board has not weighed in yet and get going, or we could tell them they'd like to hold off 30 to 60 days because they'd like to weigh in. Ideally a year from now, the Ethics Board would recommend to the Commission the adoption of the financial disclosure form and then they would have the power to make any changes. 0:43:35 Mr. Sullivan This could possibly be placed on the board agenda for next month (meeting) and the item would say, 'Decision on recommendation to City Commission regarding financial disclosure form'. 0:44:59 Ms. Frost Ms. Frost asked whether the Board can have discussions regarding items that are not specifically on the agenda. 0:45:15 Mr. Kukulski Mr. Kukulski explained that if an item is not at all on the agenda and action is being taken someone later will be disgruntled. Giving direction and hashing things out are okay. The tighter you have things to the agenda the better. Minutes of the Board of Ethics, July 22, 2009 0:45:59 Mr. Kukulski Mr. Kukulski spoke regarding a few views of staff regarding the form and then the positive aspect of the form from an ethical standard. 0:47:15 Mr. Schultz Mr. Schultz asked what the consequence is procedurally for someone who does not fill the form out. 0:47:17 Mr. Sullivan Mr. Sullivan explained that would be a violation of the Ordinance. Someone would probably need to file a complaint first, but not ready to determine those steps yet. This question gets back to how to implement the quasi judicial function of the Board. 0:49:05 Mr. Sullivan Mr. Sullivan confirmed with Board members that this item should be placed as an item on their next agenda. He mentioned that they should be contemplating who and what. He pointed out that there are five different categories listed in the Ordinance regarding what should be disclosed. The form mirrors the Ordinance. 0:50:16 Mr. Kukulski Mr. Kukulski has already had questions regarding item 2 on the form and what exactly is expected to be disclosed on that item. This item may need more clarification. 0:50:49 Mr. Schultz Mr. Schultz was also questioning that language and brought up what time frames are expected when disclosing. 0:52:59 Mr. Kukulski Mr. Kukulski said that in an FYI to the Commission we'll inform them that the Board had its first meeting and the financial disclosure form will be one of the first things to be tackled. Mr. Kukulski left the meeting after reiterating that he would be happy to be available whenever needed for future meetings or contacting him via phone or a-mail and is thankful for the Board. 0:54:37 Ms. Frost Ms. Frost asked if the Board should attend the Commission meeting if they have recommendations to go before the Commission. 0:54:55 Mr. Sullivan Mr. Sullivan explained that members can go through staff but it doesn't hurt if it comes directly from a member of the Board and they answer questions directly. Answering to a question from Ms. Frost, he explained it could be one of them, all of them, etc. 7 Manures of the Board of Ethics, July 22, 2009 0:55:42 Ms. Frost Ms. Frost brought up a question regarding when the board can speak about board matters outside of a meeting since two members is a quorum. 0:55:49 Mr. Sullivan Mr. Sullivan responded that board members can speak to each other outside of meetings regarding administrative matters only. Substantive items that you are taking action that is of significant interest to the public cannot happen outside of meetings, including within e-mails. Mr. Sullivan explained that staff can help the Board communicate. 0:56:44 Stacy Ulmen, City Clerk Ms. Ulmen explained that if the Board has items they would like to place on the agenda, members can contact the City Clerk's office and then staff can contact members. 0:57:04 Aimee Kissel, Deputy City Clerk Ms. Kissel asked for clarification regarding staff contacting the Board as a whole and received confirmation from Mr. Sullivan that yes that was acceptable. 0:57:27 Mr. Sullivan Mr. Sullivan explained that some of the details will be dealt with when the Board creates their by-laws. He suggested that the Board may want to have a standing item on every agenda such as establish the next meeting or set agenda for the next meeting. If something comes up later, the Board member would inform the clerk. 0:58:27 Ms. Ulmen Ms. Ulmen explained that Ms. Kissel is the board's coordinator and the official posting area for the agenda is in the foyer outside the Commission room at City Hall and needs to be posted no later than 48 hours in advance. The agendas are also placed on-line. Ms. Kissel will also be taking the Board of Ethics minutes. Ms. Ulmen also explained that they will always want to have on your agenda approval of the prior meetings minutes and they'll need to be signed and the meetings will also be recorded. 0:59:45 Mr. Sullivan Mr. Sullivan explained that of all the Boards, this Board needs to set the highest bar and we all need to be careful of that. There is a lot that we need to go over in the next several meetings to establish rigid, proper protocol. 1:00:35 Mr. Sullivan Mr. Sullivan explained that a-mails are public record, and when Board members use their personal a-mail accounts they become public record. Responding to a question from Ms. Kissel, Mr. Sullivan said that we could look into the possibility of getting Board members city e-mails. 8 Marrutes of the Board of Ethics, July 22, 2009 1:02:05 Ms. Kissel Ms. Kissel clarified whether the Board could cc each other in a reply back to the clerk's office. Mr. Sullivan responded that no they could not cc each other, but could only respond back to the clerk's office. 1:02:45 Mr. Sullivan Mr. Sullivan explained that the law has not really caught up to the practice of e-mail yet. It is best to stay clear of any action that could potentially have the perception of impropriety. If you want a meeting, you can meet more often than not and have even an hour lunch meeting as long as it is properly noticed. 1:05:13 E. Review of Ordinance No. 1759 1:05:51 Ms. Frost Ms. Frost began a discussion about the Ordinance and the related events leading up to now. 1:06:22 Mr. Sullivan Mr. Sullivan explained how the Ethics Ordinance was handled by staff. Mr. Sullivan also spoke regarding things within the Ordinance he feels should be addressed. In particular, looking at the prohibition that says that members of an advisory board cannot come before the Commission in a professional capacity. Mr. Sullivan gave an example where this prohibition causes issues. A discussion on this topic ensued. 1:12:28 Mr. McCormick Mr. McCormick responded to a question from Ms. Frost regarding how deeply they would like to go into a review of the Ordinance tonight, saying he would like a chance to re-read the Ordinance now that the Board has gotten started. 1:12:43 Ms. Frost Ms. Frost confirmed that she felt they should have an agenda item on the next meeting to revisit the Ordinance. 1:12:54 Mr. Schultz Mr. Schultz spoke to the idea of breaking the Ordinance up into sections for review purposes. 1:13:13 F. Draft and prioritize work plan Ms. Frost asked for recommendations from Mr. Sullivan regarding areas they should focus on. 1:13:27 Mr. Sullivan Mr. Sullivan spoke regarding having an understanding from the Ordinance of the powers and role of the board and what the board is authorized to do. He also suggested Board members garner an understanding of the Montana Code that is referred to in the Ordinance as that Code is an important aspect. 9 Minutes of dae Boa~~d of E/hits, July 22, 2009 1:16:43 Mr. Sullivan Mr. Sullivan spoke regarding the importance to talk about a variety of issues including Board members immunity and how that immunity could be lost, public records, etc. 1:17:36 Mr. Sullivan Mr. Sullivan responded to comments by Mr. McCormick and Ms. Frost saying that the Board may want to begin by looking at questions of scope in the Ordinance. With the next meeting going over conflicts of interest and the powers and duties of the board, section 2.01.130 as a starting point. 1:18:42 Mr. Sullivan Mr. Sullivan began a discussion regarding having a strategic planning session. 1:22:12 G. Discuss future meeting dates and times Ms. Frost began the discussion regarding future meeting dates and times. 1:25:08 Mr. Sullivan Mr. Sullivan brought up the issue of work load and whether the Board would be handling the primary work or a staff member would be. 1:25:49 Mr. Sullivan Mr. Sullivan brought up the issue of how much staff would need to be involved in the details of drafting the handbook and the time that may or may not need to be invested by staff. 1:26:46 Mr. McCormick Mr. McCormick spoke to the need to keep the ethics handbook simple and direct. 1:27:06 Ms. Kissel Ms. Kissel said that the Human Resource Director may be a good resource for the handbook as well. 1:27:28 Mr. Sullivan Mr. Sullivan explained that the Ordinance and State Law are already prescriptive so the handbook will basically be a how to wade through those and who they apply to. 1:28:43 Ms. Frost Ms. Frost confirmed with the other members after discussion on the topic that meetings every two weeks for the first year are appropriate. 1:29:48 Ms. Frost Discussion took place regarding who would be the presiding officer if Ms. Frost was not in attendance at a meeting. Board members asked Mr. Sullivan to pull a second name out of the cup with Mr. Schultz and Mr. McCormick's names in it. 10 Minutes of the Bom-d of Ethics, July 22, 2009 1:29:49 Mr. Sullivan Mr. Schultz was pulled from the cup and named as the vice-chair of the Board. Mr. McCormick would then become secretary and designate deputy city clerk, Ms. Kissel as the secretary on behalf of the board. 1:30:51 Ms. Kissel Ms. Kissel brought up the idea of meeting the 2nd and 4th Wednesday of the month as being the most likely for availability in the commission room. 1:31:33 Ms. Kissel Ms. Kissel confirmed with the board that they would like to meet the 2nd and 4th Wednesday of the month with the next several meetings taking place on August 12, and 26th. After discussion, the board decided to meet at 6 p.m. 1:32:49 Ms. Kissel Ms. Kissel explained that she would listen to the recording and type up the main points of the meeting, not word for word and both the recording and text would be made available publicly. 1:33:09 Ms. Frost Ms. Frost began a discussion on how quickly the turn-around would take for the minutes. 1:33:52 Ms. Kissel Ms. Kissel explained that she was not sure how long turn around for Board minutes would be yet. 1:35:08 Mr. Schultz Mr. Schultz asked whether samples the Board may gather (of other ethics handbooks) should be made public. 1:35:12 Mr. Sullivan Mr. Sullivan explained that if they are going to form the basis for a decision the board makes, they need to be on the record. The official record will be kept in the clerk's office. 1:35:51 Mr. McCormick Mr. McCormick began a discussion about other Cities with Charters. 1:39:54 Mr. Sullivan During a discussion on where the board should look first for other cities handbooks, Mr. Sullivan suggested going to Missoula and Billings first, and then other cities that might surprise you such as Red Lodge or Lewistown. 1:41:31 Mr. Sullivan After discussion regarding the need for research, the subject of how much support would be provided to the board regarding research and other time consuming administrative support. Staff 11 Minutes of the Board of Ethics, July 22, 2009 will need to discuss this issue with the City Manager about how responsibilities will be divided and whether other staff would need to be brought in. 1:42:48 Ms. Ulmen Ms. Ulmen spoke regarding the clerk's office sending out a request for information on the state clerk's listserv. 1:43:45 Ms. Kissel Ms. Kissel brought up using the local government center as a resource. 1:44:37 Mr. Sullivan Lynn Bacon from the Wetlands Review Board would like to meet with the ethics board at some point regarding the conflicts of interest portion of the Ordinance. 1:45:21 Ms. Ulmen Ms. Ulmen asked the Board to forward any public comment received by Board members to the clerk's office. 1:45:53 Ms. Ulmen Ms. Ulmen responded to a question from Ms. Frost regarding phone calls from a member of the public, saying the board member would log the call with the date and time and other pertinent information. 1:46:00 Mr. Sullivan Mr. Sullivan explained that if the Board is hearing a complaint, a conversation regarding board matters with a citizen would not be okay, otherwise talking on the phone with a member of the public is just fine. 1:46:23 Ms. Kissel Ms. Kissel iterated that if someone calls a member at home and they do not want to discuss the issue one on one, the Board member can tell the person to come to the next meeting and speak during public comment. 1:46:59 Ms. Kissel Ms. Kissel asked Board members how they would like to be contacted by the public. 1:47:36 Mr. Sullivan Mr. Sullivan suggested that if the clerk's office should receive a question from the public for the Board, the clerk's office would then a-mail the chair and the chair could call that person back. 1:47:56 Ms. Frost Ms. Frost was in agreement with Mr. Sullivan's plan regarding public questions. 12 Manutes of tl~e Board of Ethics, July 22, 2009 1:48:52 Mr. Schultz Mr. Schultz brought up the idea of having a standing agenda item on every meeting for the Board to share any information received by individuals since the last meeting. 1:49:33 Meeting adjourned at 8:52 p.m. Ms. Frost adjourned the meeting at 8:52 p.m. Prepared by: ~--/ Aime Kissel, Deputy City Clerk Approved on August 12, 2009 13