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HomeMy WebLinkAboutDiscussion regarding Revisions to the City Code of Ethics.pdf Commission Memorandum REPORT TO: City Commission FROM: Mayor Krauss SUBJECT: Discussion of possible revisions to the City Code of Ethics AGENDA TYPE: Action RECOMMENDATION: Discuss possible revisions to the City Code of Ethics and direct staff to continue to work with the Board of Ethics to draft changes to Ordinance No. 1775. BACKGROUND: On December 7, 2009, City Attorney Greg Sullivan brought before the Commission provisional adoption of Ordinance 1775, amending chapter 2.01 (BMC), Code of Ethics. The main purpose of these changes was to include specific ‘whistleblower’ and retaliation provisions in the Code per Commission direction. While reviewing these provisions, the Board of Ethics identified other changes to the Code of Ethics they and city attorney Sullivan felt were needed. These included changes to the standards of conduct, provisions related to post-employment activities and conflict of interest provisions. While the City Commission did adopt Ordinance 1775, they chose to remove these additional changes and additions within Sections 7, 8 and 9. The Commission then directed the Board to review these sections again. If you would like to listen to the audio from the December 7, 2009 meeting to review prior Commission concerns, please follow the link provided. Several of the current provisions in the Code of Ethics that had been previously identified as possibly needing revision have caused unintended consequences and confusion. Mayor Krauss would like the Commission to proceed now with working on this section of the code to make it more manageable and clear while still retaining the underlying intent. The Board of Ethics and City Attorney Sullivan have spent the last several months revisiting the provisions in question and reviewing the audio recordings of Commission and staff discussion during the December 7, 2009 meeting. The Board of Ethics also feels Commission feedback would be helpful to guide them while drafting revisions. ATTACHMENTS: · Chapter 2.01, Code of Ethics, BMC · Final Ordinance 1775, Amending Ch. 2.01, Code of Ethics, BMC · Staff Memorandum and Draft Ordinance 1775 from the December 7, 2009 City Commission meeting. · May 18, 2011 Board of Ethics draft minutes. Audio linked here. · June 8, 2011 Board of Ethics draft minutes. Audio linked here. Prepared by AK on 7-21-11 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 d ti oo ORDINANCE NO 1775 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN MONTANA AMENDING CHAPTER 201 OF THE BOZEMAN MUNICIPAL CODE BMC BY AMENDING THE TABLE OF CONTENTS OF CHAPTER 201 OF THE BMC TO INCLUDE A NEW SECTION ON REPORTING OF IMPROPER GOVERNMENTAL ACTION AMENDING SECTION 201010 TO ADD ACCOUNTABILITY AND RETALIATION TO THE STATEMENT OF PURPOSE AMENDING SECTION 201020 TO ADD A DEFINITION OF IMPROPER GOVERNMENTAL ACTION AMENDING SECTION 201030 TO CLARIFY REQUIREMENTS FOR COVERED PERSONS AMENDING 201040 TO ADD ADDITIONAL STANDARDS OF CONDUCT AMENDING SECTION 201060 TO ADD PROVISIONS ADDRESSING TREATMENT OF THE PUBLIC AMENDING SECTION 201070 CLARIFYING STANDARDS FOR CONFLICTS OF INTEREST AMENDING SECTION 201110 CLARIFYING PROVISIONS RELATED TO POST EMPLOYMENT ACTIVITIES AMENDING SECTION 201111 REGARDING DISCLOSURE OF POST EMPLOYMENT ACTIVITIES AMENDING SECTION 201120 TO ADD PROVISIONS RELATED TO IMPROPER GOVERNMENTAL CONDUCT INCLUDING REPORTING AND LIMITATIONS AMENDING SECTION 201130 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 ORDINANCE 1775 Version 122209 For City Commission FINAL Adoption Page 1 of 10 90 WHEREAS the City of Bozeman is a self governing local government under Montana law and has clear legislative authority to establish standards for improper governmental action and WHEREAS the Commission finds that retaliation by any City of Bozeman employee or official for reporting of improper governmental action violates the Citys established code of ethics and WHEREAS the City ofBozeman 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 201 shall be amended as follows Chapter 201 Sections 201010 Declaration of Policy 201020 Definitions 201030 Persons Covered 201040 Standards of Conduct 201050 Use of City Resources 201060 Treatment of the Public 201070 Conflict of Interest 201080 Confidential Information 201090 Gifts Gratuities and Favors 201100 Financial Disclosure Statement 201110 Post Employment Activities 201111 Public Notice Required 201120 Reporting Improper Governmental ActionRights 201130 Board of Ethics 201140 Duties and Powers of the Board 201150 Who May Request Board Action 201160 Limitations on Boards Power ORDINANCE 1775 Version 122209 For City Commission FINAL Adoption Page 2 of 10 91 201170 City Attorney Opinions 201180 Procedures for Hearing Complaints 201190 Those Subject to Removal Only by the Governing Body 201200 Ex Parte Communication 201210 Confidentiality of Board Information 201220 Waiver of Confidentiality 201230 Statute of Limitations Section 2 That Section 20 1010 of the Bozeman Municipal Code shall be amended as follows 201010 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 22104 22105 22121 22131 and 754109 of the Montana Code Annotated Where a provision or interpretation of this Chapter conflicts with a provision ofthe Montana Code Annotated the more stringent provision or interpretation that requires a greater level of public disclosure shall apply Section 3 That Section 201020 of the Bozeman Municipal Code shall be amended to insert the following 201020 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 ORDINANCE 1775 Version 122209 For City Commission FINAL Adoption Page 3 of 10 92 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 officials or employees position E Direct Advantage means a gain or benefit to the former public servant hisher 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 1 Improper Governmental Action includes any action taken by an official or employee during the performance of the officers or employees duties regardless of whether the action is within the scope of the employees employment or the officers duties and that a Violates the standards of conduct listed in 201040 or 201060 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 publics 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 ORDINANCE 1775 Version 122209 For City Commission FINAL Adoption Page 4 of 10 93 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 reportingperson dissents from or disagrees with the city policy or decision J Officials means all officers and members of the citys 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 Section 4 That Section 201030 of the Bozeman Municipal Code shall be amended to insert the following 201030 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 heshe 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 Section 5 That Section 201040 of the Bozeman Municipal Code shall be amended to insert the following ORDINANCE 1775 Version 122209 For City Commission FINAL Adoption Page 5 of 10 94 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 hisher city position to secure any financial interest or personal interest for himselfherself 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 hisher 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 2011201 Section 6 That Section 201060 of the Bozeman Municipal Code shall be amended to insert the following ORDINANCE 1775 Version 122209 For City Commission FINAL Adoption Page 6 of 10 95 201060 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 toharass intimidate or retaliate against any member of the public Section 7 That Section 201120 of the Bozeman Municipal Code shall be amended to insert the following 201120 Reporting Improper Governmental ActionRightsLimitationsProtected 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 employ 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 ORDINANCE 1775 Version 122209 For City Commission FINAL Adoption Page 7 of 10 96 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 officials 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 officials reporting off alleeg d 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 EmployeeOfficial 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 Bozemans 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 Montanas or City of Bozemans criminal laws 4 Reporting violations of an employees or officials 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 Section 8 That Section 201130 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 ORDINANCE 1775 Version 122209 For City Commission FINAL Adoption Page 8 of 10 97 of the Board and before taking office Board member shall commit themselves to attend it Section 9 That all other sections of Chapter 201 following 201020 shall be renumbered in consecutive order to reflect the amendment in Section 5 ofthis 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 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 201 of the Bozeman Municipal Code Section 14 Effective Date This ordinance shall be in full force and effect 30 days after final adoption ORDINANCE 1775 Version 122209 For City Commission FINAL Adoption Page 9 of 10 98 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 pF B OZ41 REN JACOB N Mayor ATTEs ST city cam 3 APPROVED AS O FORM G 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 ofthis ordinance is January 27 2010 Boz KAAREN JACOB N Mayor ATT17C rte STAG YA City I 1883 APP VEDAS TO FORM j N G6t SULLIVA City Attorney ORDINANCE 1775 Version 122209 For City Commission FINAL Adoption Page 10 of 10 99 Staff Memorandum: Provisional Adoption Ordinance 1775 Amending Chpt. 2.01, BMC, to Include Provisions Related to Improper Governmental Action and Others Page 1 of 7 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 127100 Staff Memorandum: Provisional Adoption Ordinance 1775 Amending Chpt. 2.01, BMC, to Include Provisions Related to Improper Governmental Action and Others Page 2 of 7 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. 128101 Staff Memorandum: Provisional Adoption Ordinance 1775 Amending Chpt. 2.01, BMC, to Include Provisions Related to Improper Governmental Action and Others Page 3 of 7 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.” 129102 Staff Memorandum: Provisional Adoption Ordinance 1775 Amending Chpt. 2.01, BMC, to Include Provisions Related to Improper Governmental Action and Others Page 4 of 7 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 130103 Staff Memorandum: Provisional Adoption Ordinance 1775 Amending Chpt. 2.01, BMC, to Include Provisions Related to Improper Governmental Action and Others Page 5 of 7 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 131104 Staff Memorandum: Provisional Adoption Ordinance 1775 Amending Chpt. 2.01, BMC, to Include Provisions Related to Improper Governmental Action and Others Page 6 of 7 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. 132105 Staff Memorandum: Provisional Adoption Ordinance 1775 Amending Chpt. 2.01, BMC, to Include Provisions Related to Improper Governmental Action and Others Page 7 of 7 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. 133106 ORDINANCE 1775 Page 1 of 15 ORDINANCE NO. 1775 Adopted by Board of Ethics 11/18/09 Version 12/2/09: For City Commission Provisional Adoption 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 134107 ORDINANCE 1775 Page 2 of 15 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 135108 ORDINANCE 1775 Page 3 of 15 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 position. 136109 ORDINANCE 1775 Page 4 of 15 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. 137110 ORDINANCE 1775 Page 5 of 15 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. 138111 ORDINANCE 1775 Page 6 of 15 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. 139112 ORDINANCE 1775 Page 7 of 15 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 2.01.070 of the Bozeman Municipal Code shall be amended as follows: A. No official or employee shall engage in any employment or business which conflicts with the proper discharge of his or her official duties. B. No official or employee shall take or influence official action if the official or employee hasve a financial or personal interest, tangibly or intangibly, in any transaction with the City. as to which he has the power to take or influence official action. unless full public disclosure is made. . If an official or employee has any tangible or intangible financial or personal interest in the outcome of any matter coming before the agency of which he is a member or by which he is employed, such official or employee shall publicly disclose on the record of the agency, or to his superior or other appropriate authority, the existence of such financial or personal interest. An official or employee 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. B. If an official or employee has any tangible or intangible financial or personal interest in the outcome of any matter coming before the agency of which they are he is a member or by which they are he is employed, such official or employee shall publicly disclose on the record of the agency, or to their his superior or other appropriate authority, the existence of such financial or personal interest. 140113 ORDINANCE 1775 Page 8 of 15 A.C. Except as authorized pursuant to 2.01.070.H, aAn official or employee having such a financial or personal interest in a matter 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. B. 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. C.D. Except as authorized pursuant to 2.01.070.H, nNo 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 the 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. D.E. Nothing in this section shall be interpreted or construed to prohibit any official or employee from exercising histheir own individual legal rights as to histheir 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 their own personal interest before an agency of which he/she 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 and must, fully disclose any conflict of interest prior to the agency taking action. F. This section does not absolve any official or employee from complying with Title 2, Chpt. 2, MCA. 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. 141114 ORDINANCE 1775 Page 9 of 15 E.G. A City Commissioner or Mayor, as authorized pursuant to Sect. 2-2-121(10), MCA, may take action on a conflict described in this section if that Commissioner’s or Mayor’s participation is necessary to obtain a quorum or to otherwise enable the Commission to act. If so, the Commissioner or Mayor shall disclose the interest creating the conflict prior to performing the official act. F.H. Any official or employee with a conflict of interest under this section shall, in addition to other requirements in this section and when required by law, comply fully with the disclosure requirements of Sect. 2-2-131, MCA, and shall file this disclosure with the Montana Commissioner of Political Practices prior to acting. Section 8 That Section 2.01.110 of the Bozeman Municipal Code shall be amended to read: 2.01.110. Post Employment Activities. A. No former public servant: 1. during the 12 months following the date on which the 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; or 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. 142115 ORDINANCE 1775 Page 10 of 15 C.B. The provisions of this Section do not absolve a public servant, official or employee from complying with the prohibitions against contracting in Sect. 2-2-105(3), MCA, or the prohibitions against obtaining employment in Sect. 2-2-201, MCA. If any provision of this section is in conflict with Title 2, Chpt. 2, MCA the more stringent provision shall apply. Section 9 That Section 2.01.111 of the Bozeman Municipal Code shall be amended as follows: 2.01.111. (Public Notice Required for Former Public Servants/Compliance with State Law). A. 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, regarding any act prohibited under 2.01.110.A.1 and 2, shall, not less than ten (10) business days prior to the appearance, 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. The Clerk shall post the disclosure in a prominent location on the City’s website and other appropriate locations. Unless prohibited by Title 2, Chpt. 2, MCA, 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. If a former public servant cannot reasonably meet the ten (10) day notice period described above, 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, below. B. If during the first 12 months following the date on which the former public servant ceases service to the City of Bozeman a former public servant wishing to appear before the City Commission or any other city board or agency at a properly noticed public meeting the former public servant shall at the onset of the appearance place upon the record the reason for such appearance 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. 143116 ORDINANCE 1775 Page 11 of 15 C. Nothing herein shall be construed as to absolve any former public servant of their duty to comply with Title 2, Chpt. 2, MCA. If any provision of this section is in conflict with Title 2, Chpt. 2, MCA the more stringent provision shall apply. Section 10 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. 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. 144117 ORDINANCE 1775 Page 12 of 15 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; 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. Section 11 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. 145118 ORDINANCE 1775 Page 13 of 15 Section 12 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 13 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 14 Savings Provision. This ordinance does not affect the rights and duties that matured, penalties that were incurred or proceedings that were begun before the effective date of this ordinance. All other provision of the Bozeman Municipal Code not amended by this Ordinance shall remain in full force and effect. Section 15 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 16 Codification Instruction. The provisions of Section 2 shall be codified as appropriate in Chapter 2.01 of the Bozeman Municipal Code. 146119 ORDINANCE 1775 Page 14 of 15 Section 17 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 ____ day of December, 2009. ____________________________________ KAAREN JACOBSON, Mayor ATTEST: _______________________________ STACY ULMEN City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 147120 ORDINANCE 1775 Page 15 of 15 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 ____ day of _______________, 2009. The effective date of this ordinance is _________________, __ 2010. _________________________________ KAAREN JACOBSON, Mayor ATTEST: _______________________________ STACY ULMEN City Clerk APPROVED AS TO FORM: _________________________________ GREG SULLIVAN City Attorney 148121 1 of 4 MINUTES OF THE MEETING OF THE BOARD OF ETHICS May 18, 2011 BOZEMAN, MONTANA Please Note: The audio recording of this meeting is available in the folder http://weblink.bozeman.net/WebLink8/0/fol/1086/Row1.aspx. These minutes are not word for word and should be considered in addition to the audio of the meeting. The Board of Ethics of the City of Bozeman met in the Madison room, City Hall at 121 North Rouse on Wednesday, April 20, 2011 Present were board members Melissa Frost and Mary Jane McGarity as well as City Attorney Greg Sullivan and Deputy City Clerk Aimee Kissel taking minutes. Guests in attendance included Chris Budeski, Jeff Rupp and Information Technology Director Brendan Steele. A. Meeting Called to Order Melissa Frost called the meeting to order at 4:04 p.m. B. Public Comment Melissa Frost opened public comment. No person commented. Melissa Frost closed public comment. C. Approval of the April 20, 2011 minutes It was moved by Mary Jane McGarity, seconded by Melissa Frost to approve the minutes of April 20, 2011. The motion passed unanimously. D. Disclosure of information or comments received. None. E. Review E-mail etiquette with IT Director Brendan Steele Delayed until later in the meeting. F. Revisions to Ordinance No. 1759, sections 7, 8 and 9, Conflict of Interest City Attorney Greg Sullivan opened this item with a brief background statement. 122 Board of Ethics Minutes for May 18, 2011 2 of 4 Chris Budeski, Engineer and past member of the City Planning Board was invited by the Board to the meeting to provide insight about the conflict of interest issues he came up against as a member of the planning board while also needing to represent his clients before the City. Mr. Budeski said he does understand why the code is written the way it is, because some folks would be tempted to use their position on the board for their own personal gain. The way the code reads a partner could present it, but in reality, partner still has financial gain. However, the potential to influence the board is pretty minimal. Mr. Budeski feels board members should be able to present projects on behalf of their clients as long as they are not presenting to the same board they are sitting on. For some, having a partner present is not practical. He spoke regarding the importance of having experienced, experienced board members immersed in the industry. He feels the benefits should be weighed against the liability. One on one, but could happen on any level. Greg Sullivan explained the current city codes threshold of perceived conflict as ‘Representing or appearing on behalf of an individual or entity in an action or proceeding before the City’. Mr. Budeski explained that city staff presents a detailed report to the planning board to review. In reality, the decision is already made by the code. The board and Commission members just review application against the current code and are only making a recommendation not the ultimate decision which is made by the Commission. Jeff Rupp, Executive Director of HRDC and former City Commissioner was asked to attend the Board of Ethics meeting to provide insight into the conflict issues he has dealt with as a commissioner (and post Commission) and to speak more about the concerns voiced as a Commissioner when revisions to the city’s conflict of interest codes were previously brought forward. Rupp: Personal interests – as a neighborhood member wanting to present as a citizen. Jeff Rupp explained that HRDC has a relationship with the city of Bozeman working on affordable housing and transportation that goes back to the mid 80’s. Mr. Rupp felt it would be simple to recuse himself from discussions regarding HRDC. He soon learned upon becoming a Commissioner that 3 votes are needed to defeat a motion. When there is a two to two tie vote, the recused Commissioner was then called back and forced to vote on an item when there was a conflict of interest. Mr. Rupp wanted to change those rules within the Commission rules of procedure but was unable to. Mr. Rupp also spoke about anyone being able to file a conflict of interest complaint against a Commissioner. Mr. Rupp says the code does not seem clear as to the difference between what someone perceives as a conflict of interest and the advice received from the city attorney and what an actual conflict of interest is. Mr. Rupp saw the potential for political motivations for filing a complaint about a ‘perceived’ conflict of interest because it is so hard to define. He ran 123 Board of Ethics Minutes for May 18, 2011 3 of 4 for the City Council to talk about social issues and then could not talk about those issues. Most controversial was an affordable housing discussion that didn’t have anything to do with HRDC, but due to the perception he recused himself anyway. Jeff Rupp explained that the more you can define those conflicts the better. Mr. Rupp explained that conflicts of interest are not limited to direct votes. For example there are situations where staff can be placed under tremendous pressure and reports may reflect that already. You cannot ignore that pressure exists. Mr. Budeski said there is grey area in the code that staff can interject opinions while still staying within the parameter of the code. Mr. Rupp said perceptions can be manipulated but he is not sure what can be done about it. Mr. Budeski explained he left the planning board because his livelihood depended upon him being able to present projects before the City for his clients and he could not present and stay on the planning board because of the city conflict of interest provisions. Mr. Budeski said potentially you could lose good people on boards with the code but you need to weigh benefits, and the perceived conflicts. Is it the good of the whole to keep it in place or change the code and allow people from disciplines to serve on the boards? Mr. Rupp said he would not want to submit the other Commissioners to the awkwardness of an appearance of conflict even when one does not exist. Mr. Sullivan spoke regarding the appearance of fairness doctrine. Mr. Rupp explained that he feels many of these problems would disappear if the rules of procedure were changed so that a tie vote would not force a recused Commissioner to vote. Mr. Sullivan explained the Commission just went through a process of restructuring the rules of procedure and this was discussed, but the Commission chose not to change this. They did not want a minority of the Commission to control the outcome. Mr. Rupp explained that the public headline that someone has filed a complaint regarding a conflict of interest is all that is needed to damage the persons reputation – despite whether the complaint is true or not. Mr. Budeski made the point that he feels there are only two boards that make decisions; the City Commission and the Board of Adjustment. Other boards make recommendations and do not have final decision making authority. Mr. Budeski said he has joined private boards where these issues are not there. 124 Board of Ethics Minutes for May 18, 2011 4 of 4 Mr. Rupp said while the City would not want to be swamped with investigations, he would rather the City err on the side of transparency. Mr. Sullivan spoke regarding the distinction in the code that if you have a partner, a partner can come present. At some time this was decided this would remove the conflict but in reality the conflict still exists. Guests and the board briefly discussed the provision regarding post employment restrictions. Mr. Sullivan explained there are four statutory boards that actually make final decisions. These include the City Commission, Board of Adjustment, Library Board and the Parking Commission. The Business Improvement Districts and Tourism Improvement District has some level of authority. Mr. Sullivan pointed out that the Commission usually relies heavily on the recommendations of boards such as the planning board. Mr. Budeski said the findings on a project are written by staff and in most cases the planning board adopts staff findings with some minor deviations. Mr. Rupp reiterated that as a Commissioner he relied heavily on all the advisory boards to go into much more detail than the Commission can. Mr. Budeski spoke regarding how extremely transparent the process is. Mr. Rupp spoke regarding the large amount of information about himself and his family that is required to be disclosed through the city’s financial disclosure form, etc. Mr. Budeski and Mr. Rupp left the meeting with thank you’s being exchanged by all. E. Review E-mail etiquette with IT Director Brendan Steele Brendan Steele with Information Technology came in to explain and discuss email rules and etiquette and the reasons behind the rules since Board of Ethics members have a city email. F. Revisions to Ordinance No. 1759, sections 7, 8 and 9, Conflict of Interest Discussion Continued…. · conservative approach versus need for quality board members · Actual vs. perceived conflict vs. not sure if a conflict exists · Most people want to recuse themselves - do not want even the slightest perception of a conflict · Line between Commission and boards – code differs between the two · Stating of conflict – may make more acceptable when limited people to serve on boards? 125 Board of Ethics Minutes for May 18, 2011 5 of 4 · Is there an actual problem with how the code works? · Examine the boards that often have vacancies – what are causes? · Personal interest – for example can a Commissioner testify on a zoning issue in his own neighborhood? · City more stringent than state law – match all to state law H. FYI / Discussion 1. Change next meeting date to accommodate member schedules – move to June 8th. 2. The City website has some problems with searching. Funky problems happening when search for ethics as keyword. Bozeman City Charter link isn’t working? 3. Still try to contact Lynn Bacon for her input on conflict of interest. 4. Greg Sullivan spoke to Carson Taylor about a mock hearing and he is interested. A new law intern will be starting soon and will be assigned to help develop that. I. Adjourn Melissa Frost adjourned the meeting at 5:27 p.m. ____________________________________ Melissa Frost, Board Chairperson Prepared by: _______________________________ Aimee Kissel, Deputy City Clerk Approved on:_____________________ 126 1 of 4 MINUTES OF THE MEETING OF THE BOARD OF ETHICS June 8, 2011 BOZEMAN, MONTANA Please Note: The audio recording of this meeting is available in the folder http://weblink.bozeman.net/WebLink8/0/fol/1086/Row1.aspx. These minutes are not word for word and should be considered in addition to the audio of the meeting. The Board of Ethics of the City of Bozeman met in the Mayors Office, City Hall at 121 North Rouse on Wednesday, June 8, 2011. Present were board members Melissa Frost and Mary Jane McGarity as well as City Attorney Greg Sullivan and Deputy City Clerk Aimee Kissel taking minutes. A. Meeting Called to Order Melissa Frost called the meeting to order at 4:07 p.m. B. Public Comment Melissa Frost opened public comment. No person commented. Melissa Frost closed public comment. C. Disclosure of information or comments received. Mel Frost spoke with a potential third board member. She will be speaking with her again. D. Revisions to Ordinance No. 1759, Conflict of Interest · Deputy City Clerk Aimee Kissel stated she had previously contacted Lynn Bacon, past Wetlands Review Board member to ask if she would like to provide input from past board experience regarding conflict of interest. Due to time constraints, Ms. Bacon declined. Review of material from Dec. 7, 2009, when City Attorney Sullivan presented provisional adoption of Ordinance 1775, amending Chpt. 2.01. o The Commission decided not to adopt Sections 7, 8 and 9 of this Ordinance which dealt with conflict of interest, clarification regarding state law, and clarifying the process by which a former public servant can override the prohibitions. 127 Board of Ethics Minutes for May 18, 2011 2 of 4 Greg Sullivan summarized what he felt the Commission was questioning on these sections when they decided to remove sections 7, 8 and 9 before approving Ordinance 1775. · 4th bullet under section 7 and the first two bullets under section 7 all of which are mostly clarifying and were created to reduce conflict from one section to another. Mel Frost summarized the following as Commission concerns after listening to the audio recording of the Dec. 7th, 2009 meeting: · Tie Vote Issue · Definition of personal interest · Post employment activities – The State is only 6 months · Process for post employment disclosure was confusing · Rupp suggested a clean slate · Krauss suggested taking sections 8 and 9 and mirroring state law - The Board compared state law side by side with city law. · Post- employment Activities – Section 8 · 2.2.201, MCA: Difference between employment and contracts · If an attempt to supersede State law directly – make sure we know that is what we are doing. · We have provided a mechanism for post-employment activities in the city code with a notice provision. Under the State statute there is no exception. · In Commission conversation 12-7-09: issue of ten day rule – what if something comes up within ten days? Notice provision not as useful if body hears something within that 10 day time frame. · Discussion of intent and purpose of statutory prohibition in MCA 2.2.105 and in contract provision. · Clarifying that more stringent provision applies. Example: former Mayor involved with local nonprofit trying to advocate that city keep a facility. Decided to wait a year before advocating on the nonprofits behalf. Might have triggered requirements in 1.110. · Difference between state and city: State statute has to do with employment; city statute has to do with any appearance of conflict. Example: What is the difference between 6 and 12 months? · 12 mths less likely that an issue brought before former Commissioner will come up again. 128 Board of Ethics Minutes for May 18, 2011 3 of 4 Discussion regarding changes the Board of Ethics tried to make previously in Section 9. · Discussion regarding the addition of language to cover the need for better noticing requirements for someone who does want to testify on a subject post employment. This important because originally code only stated that the disclosure had to be on file with the clerk and city attorney. Changes dictate that the disclosure be posted prominently, or if past 10 day time frame state their disclosure at the public meeting they wish to speak at. · Board revisions were made to make code and noticing requirements clear and more transparent. · During the conversation in December – the Commission was very focused upon themselves as Commissioners. · Point that people know about the conflict - Allowing public notice is not unreasonable. Not that all will be prohibited, but rather the process open. · Idea: for employees and board members – state law but with elected officials – city prohibitions. Targeted towards Commissioners. Recognizing that there is a difference. Major financial decision-makers and elected officials vs. general employees and board members? · Not touch substance of ethical role in Section 2 of 1.10, but should fix notice requirements in Section 9, 1.11 as requested earlier · Put a packet together and engage the Mayor and Cr. Becker in this conversation prior to going back before the Commission. Invite them to a meeting? Discussion regarding changes the Board of Ethics tried to make previously to Section 7 · Commission did not talk much about section 7 – Personal interest and the difference between financial and personal. (Lack of clarity between the two) · 0.2.0 Definition of personal interest – Defines by saying what it is not. · Section 7 – also about tie votes. · State law 2.2.121 versus the city rule that 3 people are needed to vote on something to adopt or reject. Rule of three. The idea is that a minority of the Commission never controls a decision. The city rule however makes the conflicting member of the Commission make the final decision. · Just went through Rules of Procedure and Commission just decided to keep this rule of three. Limited to Commission so board members don’t have to vote when State law says they shouldn’t. · Specific authority in G. Normal appointed board members couldn’t act in furtherance of a conflict. Specific intention at the Dec. 7th, 2009 meeting was whistleblowing provisions. Staff added changes to sections 7, 8 and 9 at the same time. Likely too much to digest in one Commission meeting. Good ideas – just need time and energy for them to digest. 129 Board of Ethics Minutes for May 18, 2011 4 of 4 · Roberts Rules / Standard Rules of Procedure – Have a quorum with a tie vote the motion dies. · The rule of 3 only applies to the Bozeman City Commission because it is stated in their rules of procedure. · The board discussed concern that in the case of a Commission tie vote, the Commissioner with a conflict actually makes the final decision. The Board feels this creates an ethical dilemma for the Commission. Potential for the vote to be contrived. In that situation – the board feels the motion should die? · Greg Sullivan will Publish Rules of Procedure Chapter and send to Mel and Mary Jane for review. · Board members asked for the materials and audio of the discussion the Commission had on December 6th, 2010 and May 23, 2011 regarding keeping the rule of three in their Rules of Procedure. Ms. Kissel to email to board members. The board asked Ms. Kissel to write a detailed summary of the position of the board from these minutes for review during the next ethics meeting. E. FYI / Discussion Plan for next Ethics meeting on July 20th: · Ethics members to review audio and materials from Commission discussion regarding Rules of Procedure before the next meeting. Ms. McGarity to review audio from Dec. 7, 2009. · Ethics members to review summary position at next meeting and then invite Mayor and Deputy Mayor to a following meeting. · July – talk about mock trial. F. Adjourn Melissa Frost adjourned the meeting at 5:33 p.m. ____________________________________ Melissa Frost, Board Chairperson Prepared by: _______________________________ Aimee Kissel, Deputy City Clerk Approved on:____________________ 130