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HomeMy WebLinkAboutDraft Ordinance, whistleblow, 10-28-09 meeting ORDINANCE NO. 1775 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, AMENDING CHPT. 2.01 OF THE BOZEMAN MUNICIPAL CODE BY AMENDING THE TABLE OF CONTENTS OF CHAPTER 2.01 OF THE BMC TO INCLUDE A NEW SECTION ON REPORTING OF IMPROPER GOVERNMNETAL ACTION; AMENDING SECTION 2.01.010; AMENDING SECTION 2.01.020 TO ADD A DEFINITION OF IMPROPER GOVERNMENTAL ACTION; AMENDING 2.01.040 TO ADD ADDITIONAL STANDARDS OF CONDUCT; AMENDING SECTION 2.010.060 TO ADD PROVISIONS ADDRESSING TREATMENT OF THE PUBLIC; AMENDING SECTION 2.01.120 TO ADD PROVISIONS RELATED TO IMPROPER GOVERNMENTAL CONDUCT, INCLUDING REPORTING AND LIMITATIONS; AND RENUMBERING NUMEROUS SECTIONS, INCLUDING AN EFFECTIVE DATE, AND CODIFICATION INSTRUCTION. WHEREAS, the Bozeman City Commission finds that the public trust is critical to a well functioning democracy and that additional provisions in the Bozeman Municipal Code related to improper governmental action including retaliation by employees and officials against those who report alleged improper governmental action are necessary to ensure the trust of the public; and WHEREAS, the specific types of actions and behavior that constitutes improper governmental action should be specifically defined so as to inform those who may allege a violation of the standards of conduct as to which behaviors constitute such misconduct; and WHEREAS, the City of Bozeman is a self-governing local government under Montana law and has clear legislative authority to establish standards for improper governmental action; and WHEREAS, the Commission finds that retaliation by any City of Bozeman employee or official for reporting of improper governmental action ethics; and ORDINANCE 1775 Page 1 of 12 WHEREAS, the City of Bozeman Ethics Board, at a duly noticed meeting, via motion and vote, passed a recommendation to the Bozeman City Commission that the Commission adopt this ordinance. NOW THEREFORE, BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA: Section 1 That the table of contents of Chpt. 2.01 shall be amended as follows: Chapter 2.01 Sections: 2.01.010 Declaration of Policy. 2.01.020 Definitions. 2.01.030 Persons Covered. 2.01.040 Standards of Conduct. 2.01.050 Use of City Resources. 2.01.060 Treatment of the Public. 2.01.070 Conflict of Interest. 2.01.080 Confidential Information. 2.01.090 Gifts, Gratuities and Favors. 2.01.100 Financial Disclosure Statement 2.01.110 Post Employment Activities 2.01.111 Public Notice Required 2.01.120 Reporting Improper Governmental Action/Rights 2.01.130 Board of Ethics 2.01.140 Duties and Powers of the Board 2.01.150 Who May Request Board Action 2.01.160 2.01.170 City Attorney Opinions 2.01.180 Procedures for Hearing Complaints 2.01.190 Those Subject to Removal Only by the Governing Body 2.01.200 Ex Parte Communication 2.01.210 Confidentiality of Board Information 2.01.220 Waiver of Confidentiality 2.01.230 Statute of Limitations ORDINANCE 1775 Page 2 of 12 Section 2 That Section 2.01.010 of the Bozeman Municipal Code shall be amended as follows: 2.01.010 Declaration of Policy The proper operation of the city government requires that public officials and employees be independent, impartial, accountable, 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 nor be used to harass, intimidate, or retaliate against citizens and other employees and officials; 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, accountable 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, , 2-2-121, 2-2-131, and 7-5-4109 of the Montana Code Annotated. Where a provision or interpretation of this Chapter conflicts with a provision of the Montana Code Annotated the more stringent provision or interpretation that requires a greater level of public disclosure shall apply. Section 3 That Section 2.01.020 of the Bozeman Municipal Code shall be amended to insert the following: 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. departments, and offices of the city, without exception. B. Board of Ethics. C. ORDINANCE 1775 Page 3 of 12 D. general public and which is obtained only by reason of an official's or employee's position. E. present principal or employer. F. not include independent contractors hired by the City, City Commissioners, or any Municipal Judge. G. 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. H. I.includes any action taken by a city officer or employee during regardless of whether the action is within the scope of employment duties, and that a.Violates the standards of conduct listed in 2.01.040.H or 2.01.060; b.Violates the standards prescribed by Title 2, Chpt. 2, MCA; c.Is intended to, or could reasonably be considered to, harass, intimidate, or retaliate against any other employee, official, or any member of the public for the conducted protected under this Chapter or state or federal law; d.Violates a fiduciary duty to the City of Bozeman or its citizens; or e.Creates a substantial or specific . Improper Governmental Action excludes personnel actions, including but not limited to: employee grievances, complaints, appointments, promotions, transfers, assignments, reassignments, reinstatements, restorations, reemployments, performance evaluations, reductions in pay, dismissals, suspensions, demotions, reprimands, violations of ORDINANCE 1775 Page 4 of 12 collective bargaining or civil service laws, or alleged violations of agreements with labor organizations under collective bargaining. A properly authorized city program or budgetary expenditure does not become an improper governmental action because a reporting person dissents from or disagrees with the city policy or decision. H.J. elected or appointed, whether paid or unpaid, whether permanent, temporary, or alternate, and that are not employees. I.K. 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. J.L.ary Board and employee as defined in this section. K.M. 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. Section 4 That Section 2.01.040 of the Bozeman Municipal Code shall be amended to insert the following: Standards of Conduct A.Officials and employees have an obligation to act morally and honestly in discharging their responsibilities. 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. ORDINANCE 1775 Page 5 of 12 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, herself, 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 or her 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. H.All City officials and employees shall refrain from improper governmental action as defined in this Chapter. I.No city officer or employee shall retaliate against any employee, officer, or member of the public regarding an allegation of improper governmental conduct because that employee, officer, or member of the public proceeded or is proceeding in good faith under this Chapter. Section 5 That Section 2.01.060 of the Bozeman Municipal Code shall be amended to insert the following: 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 shall be treated courteously, impartially, and fairly. All employees and officials shall, in the exercise of their official duties, refrain from taking any action, making of any statement, or authoring any document that is intended to, or could reasonably be considered to harass, intimidate, or retaliate against any member of the public. ORDINANCE 1775 Page 6 of 12 Section 6 That Section 2.01.120 of the Bozeman Municipal Code shall be amended to insert the following: 2.01.120. Reporting Improper Governmental Action/Rights/Limitations/Protected Conduct. A.General. 1.The provisions of this section are intended to work in harmony with the City of Bozeman Employee Handbook and provide remedies in addition to those listed in the Employee Handbook yet under no circumstances shall the provisions of this Chapter be taken as authorization for any official or member of the Board of Ethics to take or order disciplinary action be taken against a city employee for whom that official does not have authority to discipline or take action against pursuant to the Bozeman City Charter or law. 2.Nothing herein shall be deemed to reduce or interfere with the rights of an employee, official, or member of the public under Montana or federal law regarding actions that may constitute an improper governmental action. B.Right. Every City employee, official, or member of the public shall have the right to report, in good faith and in accordance with this Chapter, to a City official, employee, another government official, or member of the Ethics Board pursuant to the procedures of this Chapter, or to any member of the public, information concerning improper governmental action as described for 2.01.040.H. C.Limitations. 1.This section does not authorize a City employee, official, or member of the public to report information that is subject to an applicable privilege against disclosure at law, unless waived, or to make a disclosure where prohibited at law. The purpose of this Section is to protect and encourage employees, officials, and members of the public who know or in good faith believe improper governmental action has occurred to report those actions in good faith and in accordance with this Chapter. 2.An employee or official reporting of his or her own improper action does not grant the employee or official immunity from discipline (including but not limited to termination or removal from office) improper action would be cause for discipline or removal from office. ORDINANCE 1775 Page 7 of 12 3.This section does not grant an employee or official immunity from discipline (including but not limited to termination or removal from office) insofar as the reporting of alleged improper governmental action is found to have not been made in good faith or is found to have been made in an attempt to harass, intimidate or retaliate against the person who is the subject of the original allegation of improper governmental action. D.Employee/Official Protection and Protected Conduct. 1.The following conduct by employees, an official, or a member of the public is protected under this section if carried out in good faith: a.Reporting sexual harassment harassment policy; b.Reporting any violations of Title 2, Chapter 2, MCA (Standards of Conduct) or Title 49, MCA (Human Rights); c.Reporting any violation of criminal laws; d.; e.Reporting any other improper governmental actions pursuant to 2.01.040.H and 2.01.060; f.Cooperating in an investigation under this Chapter, the City of Bozeman Charter, the City of Bozeman personnel policies, Title 49, MCA, or federal law, conducted by a duly authorized city employee or official or a duly authorized agent of the state or federal government; or g.Testifying in proceedings or prosecution arising out of an improper governmental action. Section 6 That all other sections of Chapter 2.01 following 2.01.020 shall be renumbered in consecutive order to reflect the amendment in Section 5 of this Ordinance. Section 7 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 ORDINANCE 1775 Page 8 of 12 ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full force and effect. Section 8 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 provision of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. Section 9 Severability. 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 10 Codification Instruction. The provisions of Section 2 shall be codified as appropriate in Chapter 2.01 of the Bozeman Municipal Code. Section 11 Effective Date. This ordinance shall be in full force and effect 30 days after final adoption. ORDINANCE 1775 Page 9 of 12 PROVISIONALLY PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a regular session held on the ____ day of November, 2009. ____________________________________ KAAREN JACOBSON , Mayor ATTEST: _______________________________ STACY ULMEN City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney FINALLYPASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman, Montana on second reading at a regular session thereof held on the ____ day of _______________, 2009. The effective date of this ordinance is February, 1 2010. _________________________________ KAAREN JACOBSON, Mayor ATTEST: _______________________________ STACY ULMEN City Clerk APPROVED AS TO FORM: _________________________________ ORDINANCE 1775 Page 10 of 12 GREG SULLIVAN City Attorney ORDINANCE 1775 Page 11 of 12 ORDINANCE 1775 Page 12 of 12