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HomeMy WebLinkAbout05-18-11 Board of Ethics Minutes, approvedMay 18, 2011 BOZEMAN, MONTANA Please Note: The audio recording of this meeting is available in the folder hilp. These minutes are not wordfor 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, May 18, 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 McG,arily, 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. 1 of 5 Board of Ethics Minutes for May 18, 2011 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 board members immersed in the industry. He feels the benefits should be weighed against the liability. Greg Sullivan explained the current city code's 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 many years. Mr. Rupp felt it would be simple to revues 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 for the City Commission to talk about social issues and then could not talk about those issues. WIN Board of Ethics Minutes for May 18, 2011 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. 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. 3 of 5 Board of Ethics Minutes for May 18, 2011 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 revues themselves - do not want even the slightest perception of a conflict • Stating of conflict — may make more acceptable when limited people to serve on boards? • Is there an actual problem with how the code works? • Examine the boards that often have vacancies — what are causes? 4 of 5 Board of Ethics Minutes for May 18, 2011 • 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 8 1" 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 1 I. Adjourn Melissa Frost adjourned the meeting at 5:2i Prepared by: 5 of 5