HomeMy WebLinkAboutAdministrative Order 2010-03, Updated BMC, Title 2, & Adoption of Anti-Discrimination Policy and Related Handbook PoliciesADMINISTRATIVE ORDER NO. 2010 -03
Adoption of Updated Bozeman Municipal Code Title 2, Chapter 2.01 and
Adoption of Expanded Anti Discrimination Policy and Related Handbook Policies
A. On May 11, 2009, the Bozeman City Commission adopted Ordinance 1759, which
addressed:
Finance Disclosure Requirements;
Post Employment Activities; and
Board of Ethics
This was Ordinance was effective June 10, 2009.
On December 28, 2009, upon the recommendation of the City Board of Ethics, the
Commission adopted Ordinance 1775 which addressed and defined "Improper
Governmental Action" including retaliation by employees and officials against those who
report alleged improper governmental action. This Ordinance was effective January 27,
2010.
Combined, these actions significantly modified Title 2, Chapter 2.01, Code of Ethics, of
the Bozeman Municipal Code (BMC). The revised BMC Chapter 2.01, Code of
Ethics is hereby adopted. By adopting this Administrative Order, Appendix A of
the Employee Handbook is amended in its entirety and is replaced with the new
Code of Ethics (Attachment A, pages 3 through 19).
B. On February 8, 2010, the Bozeman City Commission adopted Resolution 4243 which
expanded the City's non discrimination policy to prohibit discrimination on the basis of
actual or perceived gender identity or sexual orientation in employment or in the
provision of services. This Resolution was effective immediately.
The implementation of Resolution 4243 requires the modification of the following
sections of the City of Bozeman Employee Handbook:
Section II. Employment Policies, Anti Discrimination Policy;
Section IV, Recruitment and Selection, General Policy; and
Section VIII, Employee Benefits
Specifically, Handbook Sections II and IV have been modified to prohibit discrimination
on the basis of actual or perceived sexual orientation or gender identify, and Handbook
Section VII has been modified to: 1) address health related and life- related benefits
separately, and 2) reflect City policy on the enrollment of domestic partners, regardless of
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gender, in the City's Health /Dental /Vision/Prescription insurance program. The revised
Sections II, IV and VIII are hereby adopted and are included as Attachment B
(pages 20 through 22) to this Administrative Order.
Every employee will receive a copy of this Administrative Order. Questions related to the
updated Code of Ethics should be directed to the City Attorney or City Clerk; questions related
to the changes in the Sections II, IV and VIII of the Employee Handbook should be directed to
Human Resources.
This Administrative Order is effective immediately.
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DATED this 8 day of March, 2010.
a )-t.L.4 ,?.ica_QJ.Qi,L
CHRIS A. KUKULSKI
City Manager
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
2.01.010. Declaration of Policy
ATTACHMENT A:
Bozeman Municipal Code Title 2, Chapter 2.01
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.
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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
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
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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.
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.
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.
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.
L. "Public servant" means officials, members of the Parking Commission and Library
Board and employee as defined in this section.
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.
2.01.030. Persons Covered
All 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, 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.
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/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.
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 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.
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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
corning 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 having such a financial or personal interest shall not engage in
deliberations concerning the matter, shall disqualify himself from acting on the matter,
except in the event of a tie vote, 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, except in the event of a tie
vote, 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.
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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 by the City Commission a financial
disclosure statement form, and recommendations for filing deadlines, procedures, and who must
file consistent with the following:
A. The Finance Director and the Personnel Director shall certify to the City Clerk a list,
current as of the previous January 1, of the names and mailing addresses of persons who
are required to file a financial statement in the current year.
B. The financial statement must include the following information: (1) the name and address
of the public servant and describe any current employment in addition to employment
with the City of Bozeman; (2) each present or past employing entity from which benefits,
including retirement benefits, are currently received by the individual; (3) each business,
firm, corporation, partnership or other business or professional entity or trust in which the
individual holds an equity interest of 10% or more of the entity; (4) each entity not listed
under subsection (B)(1) through (B)(3) in which the individual is an officer, director or
registered agent, regardless of whether or not the entity is engaged for profit; and (5) all
real property, other than a personal residence, in which the individual holds an equity
interest of 10% or more of the real property. Real property may be described by general
description such as street address or highway location.
C. Who must file financial statements. Financial statements must be filed by the members
of the City Commission, the City Manager, department heads and other major financial
decision makers which may include members of the Library Board and Parking
Commission.
D. Each department annually shall develop and then review a list of vendors and service
providers of that department who provide through contract, purchase order or otherwise,
services or materials greater than $2,500 each month or more than $10,000 per year.
Each member of that department receives these services or materials 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. For the purposes of this ordinance, substantial economic
relationship is that amount of interest in the organization, compensation including all
benefits or other valuable consideration exceeding $10,000.
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2.01.110. Post Employment Activities
A. No former public servant:
1. during the 12 months following the date on which the former public servant ceases
service to the City of Bozeman, may, without complying with the provisions of
2.01.111, 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;
2. may, for compensation, without complying with the provisions of 2.01.111 within 12
months after termination of public service 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;
3. shall use or continue to use any former official City title, including use on
business cards or stationery, following termination of employment with the City,
except that such use is not prohibited if the public servant indicates that the
employment with the City was former to current employment.
B. Upon initial employment and annually thereafter each employee, public official and
member of any 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.
2.01.111. (Public Notice Required)
During the first 12 months following the date on which the former public servant ceases
service to the City of Bozeman, any former public servant intending to make any formal or
informal appearance before, or negotiate with any decision maker, shall file with the Clerk of the
City Commission and with the office of the City Attorney a public notice of the former public
servant's desire to negotiate, or appear informally or formally before a decision maker. Such
written disclosure shall state in substance the purpose for which the former public servant wishes
to appear or negotiate with the decision maker, the reason for such appearance or negotiation and
a disclosure of all offices or employment held by the former public servant during the last 12
months of service to the City of Bozeman. Upon filing such written disclosure, the former public
servant is not prohibited from the post employment activities proscribed in 2.01.110 A. 1 2.
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
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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.
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;
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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.
2.01.130. Board of Ethics
A. There is created a Board of Ethics consisting of three (3) members who shall serve
without compensation unless the governing body provides otherwise. Members of the
Board of Ethics shall not be elected officials of the City, -full -time appointed City officials
whether exempt or nonexempt, or City employees, nor shall they be currently serving on
any other City board or commission.
B. Members of the Board shall be residents of the City.
C. Board members shall be appointed by the 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 body
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 administrative services to the Board as may be necessary.
Neither the City Attorney nor the City Clerk shall be eligible for appointment as board
members.
2.01.140. Duties and Powers of the Board.
A. The Board shall, in addition to its other duties:
1. adopt written rules governing its procedures and providing for the holding of
regular 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;
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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;
4. no later than December of each year, submit an annual report to the governing
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 any alterations in the summaries necessary to prevent
disclosure of any confidential information pertaining to any individual or
to any organization if the disclosure could lead to the disclosure of the
identity of a person who is entitled to confidentiality; and
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 City Attorney for assistance in
compelling the production of documents and witnesses to assist the Board in the
conduct of any investigation.
8. when circumstances make it necessary to do so, retain outside legal counsel and
other experts as needed after solicitation of recommendations from the City
Attorney (unless the need to retain outside counsel is caused by a conflict
involving the City Attorney's Office), and upon approval by the 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 this Chapter; and
10. 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 kept
confidential; and confidential advisory opinions rendered shall be closed in whole
to public inspection. Confidential opinions and summaries of them or open
references to them shall be drafted in such a way as not to reveal confidential
information.
11. compile and maintain an index to all financial disclosure statements currently on
file with the Board to facilitate public access to such statements; and
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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 date of the first meeting of the Board, 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 writing; and
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.
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 any matter within the scope of the Board's
authority which it may deem appropriate; the Board may initiate opinions on its
own motion or upon request; any formal opinion shall be in writing; and
4. prepare and publish special reports, technical studies, and recommendations to
further the purposes of this Ordinance.
2.01.150. Who May Request Board Action
A. Any 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 governmental 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. Any request for Board action shall be in writing, and shall be signed by the person
making the request.
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2.01.160. 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
Attorney's Office shall report its findings to the Board.
2.01.170. City Attorney Opinions
A. At the request of a person, the City Attorney may render an informal or formal advisory
opinion 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 Attorney'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 City
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 may be 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
activity which is indistinguishable in all its material aspects from the transaction or
activity with respect to which such advisory opinion 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 subject 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.
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D. The City Attorney'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.
2.01.180. 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
Clerk.
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; and
(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:
(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
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(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 Chapter shall be clear and
convincing evidence admitted at the hearing.
G. The Board, in addition to its other duties and powers, may:
(1) appoint a hearing officer to conduct hearings under this Chapter; and
(2) with the approval of the governing 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 governing body of a contract for services
approved as to form by the City Attorney; 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 permitted under state law
regarding all persons who are the subject of such investigation.
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 complainant(s) 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
any 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 the City Attorney's analysis, the Board shall review and consider the complaint
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and the City Attorney's analysis, and, if a hearing is to be held, shall set a date certain for
the hearing to 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 jurisdiction 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 the party 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 Chapter or a violation of Title 2, Chapter 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 county attorney or city
attorney for prosecution; or
(v) refer the complaint, along with the Board's findings and conclusions, to any
appropriate administrative authority for disciplinary 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
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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 city laws governing confidentiality, open
government, and torts. All such reports shall be reviewed by the City Attorney prior
to their issuance.
2.01.190. Those Subject to Removal Only by the Governing Body
If findings relative to an elected or appointed official are filed by the Board with the
governing body, the governing body may take action to remove the official in accordance
with state law.
2.01.200. 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.
2.01.210. 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. 220. Waiver of Confidentiality
A person who makes or purports to make public the substance of or any portion of an
advisory opinion requested by or on behalf of that person is deemed to have waived the
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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. 230. 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 complainant(s) knew or should have known of the action
alleged to be a violation.
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Attachment B:
Updated City of Bozeman Employee Handbook Provisions
Resulting from the Adoption of Resolution 4243
Section II. Employment Policies
Effective Date: 7/1/97
Revision Date: 3/1/201C
Employment Anti Discrimination Policies
The City of Bozeman does not discriminate against any employee or applicant for employment
because of race, color, religion, creed, sex, age, marital status, national origin, political ideas, or
on the basis of perceived or actual disability, sexual orientation or gender identity. This relates
to all aspects of employment, and to the use of all facilities and participation in all City
sponsored activities. This policy does not preclude discrimination based on bona fide occupa-
tional qualifications or other recognized exceptions under the law.
As an employee of the City of Bozeman, you are entitled to work in an environment free of
discrimination. Racial, sexual or ethnic remarks or slurs and other forms of harassment are not
tolerated. If you feel you have been treated unfairly, notify your Supervisor, the Human
Resources Director, or both. There are procedures available to address your concerns. The very
nature of harassment makes it impossible to detect unless the person being harassed promptly
reports it.
Each supervisor of the City supports and encourages the City's anti discrimination policies and
attempts to be aware of, and take appropriate steps to correct, any improper employee actions.
The Human Resources Department is responsible for administering this policy.
Section IV. Recruitment and Selection
Effective Date: 7/1/97
Revision Date: 3/1/2010
General Policy
Under the direction of the City Commission, the City Manager has the authority to hire,
discipline, manage and fire City personnel. The City Manager may, in turn, delegate this
responsibility to the City's Department Heads and Supervisors. In cooperation with the
Department Heads and Supervisors, the Human Resources Department administers and
coordinates the hiring process for all position vacancies.
The City's recruitment and selection procedures are designed to make sure all applicants are
treated equally and without regard to race, color, religion, creed, sex, age, marital status, national
origin, political ideas or actual or perceived disability, sexual orientation or gender identify. The
process for filling vacant or new positions is summarized below. Refer to your collective
bargaining agreement for further information.
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Employee benefits are provided to employees based on the availability of funds. The City's
benefit package may be changed at any time. All employees affected by any change, whether it
increases or decreases the benefits, may receive a notice of the change. A brief description of
employee benefits follows. You should refer to your collective bargaining agreement, or contact
the Human Resources Department, for more information.
Medical, Dental, Vision and Prescription Benefits
The City makes medical, dental, vision, and prescription insurance benefits available for its
employees, retirees and dependents as provided for in the most recent version of the Montana
Municipal Interlocal Authority's Plan Document /Summary Plan Description for the City of
Bozeman.
In addition to the list of dependents identified in the MMIA Plan Document who meet the
"Required Eligibility Conditions an eligible employee or retiree may enroll a Domestic Partner,
regardless of gender, if that Domestic Partner is named in an Affidavit of Domestic Partnership
that meets the criteria established in the Affidavit and is approved by the Human Resources
Director.
A "Domestic Partner" means a person who meets the following criteria:
1. Neither partner is or has been for the past six months, married, legally separated, a
cohabiter or a Domestic Partner to another;
2. The partners have cohabitated for at least six months and continue to cohabitate;
3. The partners are at least 18 years of age and mentally competent to consent to contract
and mentally competent to execute the required Affidavit;
4. The partners are not related by blood to a degree that would bar marriage in the State of
Montana;
5. The partners are each other's sole Domestic Partner and intend to remain so indefinitely;
and
6. The partners are responsible for each other's common welfare and have a financial
interdependent relationship evidenced by any of the following:
a. Mutually granted financial or health care powers of attorney;
b. Designation of each other as primary beneficiary in wills, life insurance policies
or retirement plans;
c. Executed a joint least, mortgage or deed; or
d. Have joint ownership of a banking account.
Enrollment and coverage information is available through the Human Resources Department,
and is provided to all eligible employees at orientation. Employees terminating their
employment, and those who are undergoing a reduction in hours, or entering a Leave Without
Pay status, should also contact Human Resources to learn about extending their health, dental,
vision and prescription insurance coverage.
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Employees are required to notify Human Resources, in writing, of any changes in dependent
status, such as separation or dissolution in a marriage, events which indicate an employee's
domestic partnership is no longer valid, or birth or adoption of a dependent, within fifteen (15)
working days of the date the change occurs. Failure to do so may result in disciplinary action.
Life and Accidental Death /Dismemberment Benefits
The City currently provides a $10,000 term life /accidental death /dismemberment policy for
every City employee who is scheduled to work more than 20 hours per week on a year round
basis. Spouse and dependent coverage is also provided. Employees may purchase additional
levels of coverage through payroll withholding. For coverage and cost information, contact
Human Resources.
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