HomeMy WebLinkAboutFinally Adopt Ordinance No. 1775, Amending Chapter 2.01.pdf Staff Memorandum: FINAL Adoption Ordinance 1775
Amending Chpt. 2.01, BMC, to Include Provisions Related to Improper Governmental Action and Others Page 1 of 1
Commission Memorandum
REPORT TO: City Commission FROM: Greg Sullivan, City Attorney
Chris Kukulski, City Manager
SUBJECT: Finally adopt Ordinance 1775: An Ordinance of the City Commission of the
City of Bozeman, Montana, Amending Chapter 2.01, BMC (Code of Ethics) to include provisions
related to improper governmental action and others.
MEETING DATE: December 28, 2009 AGENDA ITEM TYPE: Consent.
RECOMMENDATION: Finally adopt Ordinance 1775. BACKGROUND: On December 7, 2009, you provisionally adopted Ordinance 1775. In doing so,
you made the following amendments to the proposed ordinance:
1. Eliminate sections 7, 8, and 9 of the ordinance 2. Amend section 10; item D.5 of the ordinance to state: “reporting any other improper
governmental action as defined in this chapter.” (Note: This change has been highlighted in
yellow on the attached ordinance.)
The attached ordinance for final adoption includes these amendments. Due to the elimination of
sections 7, 8, and 9, all other sections have been renumbered.
Please note the effective date of the ordinance will be January 27, 2009. FISCAL EFFECTS: None foreseen at this time.
ALTERNATIVES: As suggested by the City Commission.
Attachments:
• Ordinance 1775 (Version 12/22/09)
• Staff Report from 12/7/09 Commission meeting (for reference only).
Report compiled on: December 22, 2009.
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ORDINANCE NO. 1775
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, AMENDING CHAPTER 2.01 OF THE BOZEMAN MUNICIPAL CODE (BMC) BY AMENDING THE TABLE OF CONTENTS OF CHAPTER 2.01 OF THE BMC TO
INCLUDE A NEW SECTION ON REPORTING OF IMPROPER GOVERNMENTAL
ACTION; AMENDING SECTION 2.01.010 TO ADD ACCOUNTABILITY AND
RETALIATION TO THE STATEMENT OF PURPOSE; AMENDING SECTION 2.01.020 TO ADD A DEFINITION OF IMPROPER GOVERNMENTAL ACTION; AMENDING SECTION 2.01.030 TO CLARIFY REQUIREMENTS FOR COVERED PERSONS; AMENDING
2.01.040 TO ADD ADDITIONAL STANDARDS OF CONDUCT; AMENDING SECTION
2.01.060 TO ADD PROVISIONS ADDRESSING TREATMENT OF THE PUBLIC;
AMENDING SECTION 2.01.070 CLARIFYING STANDARDS FOR CONFLICTS OF INTEREST; AMENDING SECTION 2.01.110 CLARIFYING PROVISIONS RELATED TO POST EMPLOYMENT ACTIVITIES; AMENDING SECTION 2.01.111 REGARDING
DISCLOSURE OF POST-EMPLOYMENT ACTIVITIES; AMENDING SECTION 2.01.120
TO ADD PROVISIONS RELATED TO IMPROPER GOVERNMENTAL CONDUCT
INCLUDING REPORTING AND LIMITATIONS; AMENDING SECTION 2.01.130 TO ALLOW ALTERNATIVE TO YEARLY ETHICS WORKSHOPS; RENUMBERING
NUMEROUS SECTIONS; INCLUDING AN EFFECTIVE DATE; AND A 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
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WHEREAS, the Commission finds that retaliation by any City of Bozeman employee or official for reporting of improper governmental action violates the City’s established code of ethics; and
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 Chapter. 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 Limitations on Board’s Power
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
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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. “Agency” means the City Commission and all other agencies, board, committees, departments, and offices of the city, without exception.
B. “Board” means Board of Ethics.
C. “City” means the "City of Bozeman", Montana.
D. “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
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position.
E. “Direct Advantage” means a gain or benefit to the former public servant; his/her
present principal or employer.
F. “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.
G. “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.
H. “Immediate family” means spouse and children.
I. “Improper Governmental Action” includes any action taken by an official or employee during the performance of the officer’s or employee’s duties, regardless of
whether the action is within the scope of the employee’s employment or the officer’s
duties, and that
a. Violates the standards of conduct listed in 2.01.040 or 2.01.060; b. Violates the standards prescribed by Title 2, Chpt. 2, MCA;
c. Is intended to harass, intimidate, or retaliate against any other employee,
official, or any member of the public for the conduct 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 danger to the public’s health or safety.
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
collective bargaining or civil service laws, or alleged violations of agreements with labor
organizations under collective bargaining.
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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. “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.
I.K. “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.
J.L.“Public servant” means officials, members of the Parking Commission and Library
Board and employee as defined in this section.
K.M. “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.
Section 4 That Section 2.01.030 of the Bozeman Municipal Code shall be amended to insert the
following:
2.01.030 Persons Covered
All city officials, including members of the Parking Commission and Library Board, and
all employees shall be bound by this chapter. Upon initial employment and annually thereafter
each employee, public official and member of every board or committee shall verify he/she has
not and will not knowingly violate any provision of this ordinance or the rules, standards of
conduct or rules of ethics established by state law.
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Section 5 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.
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/her 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/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 officials and employees shall refrain from improper governmental action as
defined in this Chapter.
I. No official or employee shall retaliate against any employee, official, or member of
the public regarding an allegation of improper governmental action because that
employee, official, or member of the public proceeded or is proceeding in good faith
under this Chapter including acting under 2.01.120.D.
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Section 6 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
harass, intimidate, or retaliate against any member of the public.
Section 7 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. 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 Board of Ethics pursuant to the procedures of this Chapter, or to any member of the public, information concerning improper governmental action.
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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 by 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) insofar as the employee or official’s
improper action would be cause for discipline or removal from office.
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 employee or official’s 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.
The following conduct by employees, an official, or a member of the public is protected
under this section if carried out in good faith:
1. Reporting sexual harassment or workplace violence pursuant to the City of Bozeman’s policies;
2. Reporting any violations of Title 2, Chapter 2, MCA (Standards of Conduct) or
Title 49, MCA (Human Rights);
3. Reporting any violation of the State of Montana’s or City of Bozeman’s criminal laws; 4. Reporting violations of an employee’s or official’s fiduciary duties;
5. Reporting any other improper governmental action as defined in this chapter;
6. 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
7. Testifying in proceedings or prosecution arising out of an improper governmental
action.
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Section 8 That Section 2.01.130 of the Bozeman Municipal Code shall be amended to read as
follows:
A. 14. In coordination with the City Attorney, City Manager, and other appropriate City personnel, arrange for the conduct of an annual workshop or training
program, 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 member shall commit themselves to attend it.
Section 9 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 10 Repealer.
All provisions of the ordinances of the City of Bozeman in conflict with the provisions of this ordinance are, and the same are hereby, repealed and all other provisions of the ordinances of the City of Bozeman not in conflict with the provisions of this ordinance shall remain in full
force and effect.
Section 11
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.
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Section 12 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 13
Codification Instruction.
The provisions of Section 2 shall be codified as appropriate in Chapter 2.01 of the
Bozeman Municipal Code.
Section 14
Effective Date.
This ordinance shall be in full force and effect 30 days after final adoption.
PROVISIONALLY PASSED by the City Commission of the City of Bozeman,
Montana, on first reading at a regular session held on the 7th day of December, 2009.
____________________________________
KAAREN JACOBSON, Mayor
ATTEST:
_______________________________
STACY ULMEN City Clerk
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APPROVED AS TO FORM:
________________________________
GREG SULLIVAN City Attorney
FINALLY PASSED, ADOPTED AND APPROVED by the City Commission of the
City of Bozeman, Montana on second reading at a regular session thereof held on the 28th day of
December, 2009. The effective date of this ordinance is January 27, 2010.
_________________________________
KAAREN JACOBSON, Mayor
ATTEST:
_______________________________
STACY ULMEN City Clerk
APPROVED AS TO FORM:
_________________________________ GREG SULLIVAN
City Attorney
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Commission Memorandum
REPORT TO: City of Bozeman Ethics Board
FROM: Greg Sullivan, City Attorney
Chris Kukulski, City Manager
SUBJECT: Provisional adoption of Ordinance 1775: An Ordinance of the City
Commission of the City of Bozeman, Montana, Amending Chapter 2.01, BMC (Code of Ethics) to include provisions related to improper governmental action and others.
MEETING DATE: December 7, 2009
AGENDA ITEM TYPE: Action Agenda
RECOMMENDATION: We recommend you review the amendments proposed by staff and the Board of Ethics and, by motion and vote, provisionally adopt Ordinance 1775.
BACKGROUND: This past summer you requested a review and evaluation of existing
protections afforded to those who report alleged violations of city policy or certain standards of
conduct related to interactions with the public. Essentially, you asked for information regarding “whistleblowing.” On August 31, 2009, staff presented you with a detailed report on existing local, state and federal protections for those who report alleged improper conduct. At that time,
you directed the City Attorney to draft amendments to the city’s Code of Ethics that would
codify (i.e. put into the city’s municipal code) more express protections for whistleblowers. You
were also interested in ensuring those who reported such conduct were not retaliated against. As such, City Attorney Sullivan drafted the attached ordinance. The “whistleblowing”
protections are entitled “improper governmental action.” In addition, various provisions address
“retaliation” type behavior. After a discussing the process this ordinance has been through to get
to you today, we will explain the details of the proposed ordinance, section by section. Process: Per you direction, the City Attorney drafted amendments to Chapter 2.01 of the
Bozeman Municipal Code and presented those amendments to the Board of Ethics on October
28, 2009. At that meeting, the Board considered the whistleblower and retaliation provisions and
requested specific adjustments. In addition, the Board considered other provisions in the Code of
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Ethics that were potentially in need of review and possible amendment. The Board of Ethics
again considered the whistleblowing and retaliation provisions as well as the other provisions
they were concerned about on November 18th and voted to unanimously recommend you
approve Ordinance 1775. As stated, the ordinance adopted by the Board of Ethics includes the other amendments prepared by City Attorney Sullivan.
City employees and officials have also been given notice and an opportunity to participate in the
development of this proposed ordinance. First, in early October, City Attorney Sullivan
presented initial drafts to the directors and the city’s Tuesday morning management team for review and comment. Several of them provided written comments and those suggestions were incorporated into the initial draft as presented to the Board of Ethics.
Second, on November 12th, with the assistance of the city’s IT department, documents related to
this proposed ordinance were placed on the city’s external website. At that time, an email was sent to all employees and all officials (i.e. board members) notifying them of the proposed ordinance and directing them to the website. Employees and officials were invited to provide
written comments to the City Clerk’s office, the Board of Ethics, or to you. They were also
encouraged to attend the Board of Ethics meetings as well as this meeting.
In addition, around the time we placed the documents on the external website, around November 9, 2009, City Attorney Sullivan directly emailed you drafts of these proposed changes.
Documents related to this ordinance remain on the city’s homepage under “Whistleblowing
Ordinance.” In addition, this memo and the version of the ordinance currently before you were placed on the website as of the afternoon of Wednesday, December 2, 2009.
Proposed Amendments:
As stated above, Ordinance 1775 contains numerous proposed amendments to Chapter 2.01, BMC. In addition to amendments defining and providing for “improper governmental action” and amendments addressing retaliation, you will find several substantive changes to the code’s
standards of conduct, its provisions related to post-employment activities, and the conflict of
interest provisions. These other proposed amendments will be discussed herein as the Board of
Ethics acknowledged the need to revisit these provisions for clarity and to clear up conflict between state and local law.
The sections of the ordinance that contain provisions related to whistleblowing and
retaliation are sections: 1, 2, 3, 5, 6, 8, and 10.
Sections of the proposed ordinance that contain provision identified by the Board of Ethics and staff and not directly related to whistleblowing and retaliation include sections: 4, 7, 8, 9 and 11.
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The following contains a description, for each section of the ordinance in numerical order, of the
proposed changes to Chpt. 2.01 of the BMC:
Section 1: This proposed amendment updates the table of contents for Chpt. 2.01 and recognizes the proposed addition of a new section related to procedures for reporting “improper governmental action.”
Section 2: This section of the ordinance proposes to amend the “Declaration of Policy”
of the Code of Ethics by incorporating language related to accountability and retaliation. The amendments speak for themselves.
Section 3: This section of the ordinance provides one of the most critical substantive
changes as it creates a definition for the term “improper governmental action.” The
definition of this term contains the substance of what constitutes (and what does NOT) improper governmental action. Please pay particular attention to this amendment. Also, please consider this in conjunction with section 10 of the ordinance discussed
below regarding reporting of improper governmental action.
Section 4: This section of the proposed ordinance contains a minor amendment to 2.01.030, BMC. The substantive amendment here is to move the existing mandate that employees and officials verify their commitment to the Code of Ethics from its
original location in 2.01.110 (Post-Employment Activities). The location for this phrase
is clearly more appropriately located in 2.01.030.
Section 5: This section of the proposed ordinance contains language that lies at the heart of the Commission’s direction this past summer. In doing so, this section of the ordinance
amends 2.01.040, BMC, by adding a new “standard of conduct” that requires all
officials and employees to refrain from improper governmental action. In addition,
this section of the ordinance creates a new standard of conduct prohibiting retaliation against an employee or official when that employee or official proceeds with a claim in “good faith” under the Code of Ethics.
Section 6: This section of the ordinance also contains critical language per the
Commission’s direction; here, the language goes directly to how employees and officials treat the public. By amending 2.01.060, this section of the ordinance provides express statements regarding how the public should be treated with regards to retaliation: “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
harass, intimidate, or retaliate against any member of the public.”
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Section 7: This section of the ordinance contains amendments not specifically requested
by the Commission but proposed by the Board of Ethics and recommend by City
Attorney Sullivan. This section of the ordinance proposes to primarily reorganize
2.01.070 (Conflicts of Interest) and propose a few substantive changes. In addition to reorganizing the provisions for clarity, the proposed changes to this section include:
• Clarifying that the only officials who may participate in an action on a matter
when a conflict of interest exists are the City Commissioners and only as authorized by Montana statute (see Sect. 2-2-121(10), MCA). See propose new subsections D and G to 2.01.070.
• Creating new subsection (F) clarifying the relationship between state law and the
city’s Code of Ethics. The proposal would make it certain the provisions of the
city’s Code of Ethics regarding conflict of interest do NOT absolve any official or employee from complying with Title 2, Chpt. 2, MCA. That is, an
employee and official are legally required to abide by BOTH state law and the
city’s Code of Ethics. The proposed subsection continues: “If any provision of
this section is in conflict with Title 2, Chpt. 2, MCA the more stringent provision, the provision that requires greater disclosure, or the provision that provides less authority to act in furtherance of a conflict, shall apply.”
• Proposing a new subsection (H) that indicates the disclosure requirements of
Sect. 2-2-131, MCA, must be adhered to when an employee or official takes an
act under this section and when disclosure of that act will be required by law. As you will note, this new subsection is written broadly. The intent is to have
employees and officials consult directly with the City Attorney to determine: (i)
whether a conflict exists; (ii) whether they are permitted to act, if at all; and (iii)
what steps are legally required if the employee or official is authorized to act.
• Deleting from 2.01.070 the following phrase: “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.” The reason this
phrase is proposed to be deleted is because it is simply duplicative and potentially conflicting with other existing provisions. These other provisions that control the
same behaviors are now labeled as subsections B, C, and D.
• Amending what is labeled as new subsection (E) to indicate employees or
officials are not precluded from bringing before an agency of the city or the
Commission a matter that affects their own individual legal rights. While newly labeled subsections A, B, and C effectively prohibit an employee of official from
engaging in any action where a conflict of interest exists between their personal
interests and those of the city, this newly labeled subsection does allow a person
to do so BUT ONLY IF the matter is of a strictly personal interest. The employee or official doing so must still comply with all other provisions, including disclosure and a separation of their official duties from their personal interest.
Examples may include a circumstance where an employee is a member of a home
owners association and must present an application or issue before the City
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Commission. The employee may do so dependent upon compliance with all the
requirements of this section. A second example would be when a member of the
planning board applies for a certificate of appropriateness for a remodel to their
own home. Complying with all other provision of the Code of Ethics, the planning board member may present their application before the city. o Please note: newly labeled subsection (D) has language that directly prohibits
representation before any city board or agency. Currently, the interpretation of this section is that it applies to professional circumstances. The Board of Ethics is also interested in reviewing this provision in consultation with several boards and may, in the future, report to you with proposed amendments.
Section 8: This section of the proposed ordinance has a few important amendments that were identified by the Board of Ethics and staff but not directly related to the
Commission’s direction on whistleblowing and retaliation. These proposed amendments
include:
• Inserting a comma in the third line of newly labeled subsection 1(A) after the phrase “negotiate with.” This comma clarifies the prohibition during the post-
employment period applies to circumstances where a former public servant
desires to “negotiate[e] with” a current city decision maker.
• Make certain the standards in this section work in concert with post-employment prohibitions found in state law and clarify the more stringent provision applies.
Section 9: This section of the proposed ordinance was identified by the Board of Ethics
and staff as important in order to clarify under what circumstances and through which
process a former public servant could override the prohibitions found in 2.01.110. To do so, the proposed ordinance:
• Makes it clear in subsection (A) the only acts a notice can override are those listed
in 2.01.110(A)(1) or (2): in (1) “… make any formal or informal appearance
before, or negotiate with, any decision maker on any matter which was under the public servant's direct responsibility as a public servant; or in (2) “… 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.”
• The proposed changes also indicate a procedure a former public servant must go through to make the notice effective including providing notice no less than ten
days prior to the meeting and posting by the clerk on the city’s website.
• The proposed amendments in subsection (A) also allow for relief from the ten day
requirement: “If a former public servant cannot reasonably meet the ten (10) day notice period… the former public servant may appear only at a duly noticed public meeting where a formal record is made and must comply with subsection
B…”
• The intent of newly labeled subsection (B) is that it directly applies to meetings between a former public servant and a decision maker that are to be formally noticed. For those types of meetings, a former public servant may appear
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regardless of the time constraints of subsection (A) but only where the meeting
meets the criteria.
• Finally, like other provisions where a potential conflict exists between the standards in state law and the city’s Code of Ethics, an addition to this section makes it clear that if a conflict exists, the more stringent standard applies. The
result may that while the city provision may allow a former public servant to
provide notice and override the prohibitions on acting, state law may not. All
former public servants are encouraged to work with the City Attorney to determine how they must comply with this section.
Section 10: This section of the proposed ordinance is another section that gets to the gravamen
of your direction from this past summer regarding whistleblowing and retaliation and as such
should be read in conjunction with the creation of a definition for “improper governmental action.” (See sections 3 and 5 of the ordinance).
• Subsection (B) is the provision that establishes a right under the Code of Ethics for any
person to report “improper governmental conduct:”
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
Board of Ethics pursuant to the procedures of this Chapter, or to any
member of the public, information concerning improper governmental action
• Subsection (C) of this section proposes to add specific limitations regarding the right
established above. Of particular importance is the provision that requires an allegation of
improper governmental conduct to be made “in good faith.” In addition, it is clear in the limitation subsection that reporting improper governmental conduct committed by one
self does not grant that person immunity from further action under the Code of Ethics or
discipline under the city’s personnel policies.
• Finally, this section lists specific instances of conduct related to the reporting of improper governmental conduct that are protected if carried out in good faith. This list is intended
to be exhaustive; meaning, that if a type of conduct is NOT listed it may not be protected
under this ordinance. Please note, however, the language is quite broad.
Section 11: This final substantive section of the ordinance proposes to amend 2.01.130, BMC, to provide an alternative to an annual ethics workshop for employees and officials. This proposal
was not specifically requested by the Commission but is being suggested by the Board of Ethics
and staff to provide flexibility and alternatives in conducting the annual ethics training.
In addition to the above proposals, the Board of Ethics and staff propose amending for gender
neutrality those sections of Chpt. 2.01 that were substantively amended by this ordinance. As such, you will see throughout the ordinance numerous gender-neutral amendments.
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Finally, we wish to remind the Commission of two major points related to implementation of the standards provided in the Code of Ethics. First, the existing Code of Ethics has specific provisions that direct the process a person interested in filing a complaint with Board must follow. The substantive amendments included in this ordinance will also use this existing
process.
Second, City Manager Kukulski intends to develop an administrative order that will include, in the city’s personnel policies, express provisions related to retaliation and whistleblowing. These provisions have not yet been adopted because staff was interested in
ensuring the provisions were compatible with the code changes the Commission adopts. Upon
final adoption of this ordinance, changes to the personnel policies will be adopted by the City
Manager.
FISCAL EFFECTS: None foreseen at this time.
ALTERNATIVES: As suggested by the City Commission.
Attachments:
• Ordinance 1775 (Version 12/2/09) Report compiled on: December 2, 2009.
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