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HomeMy WebLinkAbout09-21-11 Board of Ethics Minutes MINUTES OF THE MEETING OF THE BOARD OF ETHICS SEPTEMBER 21, 2011 BOZEMAN9 MONTANA Please Note: The audio recording of this meeting is available in the folder hup.-Ilweblink,bozeman,i?eIITJlebLink8101foII44506IRou�l.aspx, These minutes are not worn'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, September 21,2011. Present were board members Chris Carraway, Melissa Frost and Mary Jane McGarity, and City Attorney Greg Sullivan. A. Meeting Called to Order Melissa Frost called the meeting to order at 3:09 p.m. B. Public Comment Melissa Frost opened public comment. No person commented. Melissa Frost closed public comment. Welcoming New Member Chris Carraway Chairperson Melissa Frost welcomed Chris Carraway to the Board of Ethics. C. Approval of the August 17, 2011 minutes It was moved,by Mary Jane McGarity, seconded !a Chris Carraway to approve the minutes of August 17,2011 as edited. The motion passed unanimously. D. Disclosure of information or comments received. None. E. Discussion of Mock Trial City Attorney Greg Sullivan spoke regarding the next steps in this process. 0 October 19`x,public meeting -board considers the complaint and decides whether; c to dismiss the complaint OR 1 of 9 Minutes of the Board of Ethics, September 21, 2011 • decide the complaint on its merits without having a hearing OR • determine to have a hearing then decide whether the board will conduct the hearing or have a hearings officer • November 16th meeting—Mock Hearing • Extend meeting time to allow for mock trial? 3 to 7? • City staff as actors for mock trial including attorneys Susan Wordal and Tim Cooper to represent each side. • Mr. Sullivan and Ms. Kissel to have a prior meeting with city staff'east' to help them understand the fact patterns and their roles. • December 21" meeting—vote to acceptor reject findings/conclusions o Between the November and December meetings, the board would ask Mr. Sullivan to write up findings of fact and conclusions of law based on what the board finds at the mock trial. The board discussed when and if the meeting to discuss the complaint or conduct the hearing would be closed. Mr. Sullivan explained that a hearing and related discussions would be public unless there were privacy interests. The meeting would then be closed just when discussing those privacy interests with the meeting re-opening directly after. The board discussed which member would act as hearings officer. Chris Carraway volunteered. Mr. Sullivan said his role will be to provide procedural assistance. During the hearing he will be the boards counsel. It will be a trial-type setting with both sides presenting their case, with the other side cross examining. The Board can also ask questions throughout. F. Discuss Revisions to Ordinance No. 1775, (Previously 1759) Conflict of Interest Review homework list Mr. Sullivan reported he spoke with past assistant City Manager Ron Brey who was the original staff member that brought code of Ethics revisions before the Commission in 1992. Mr. Brey indicated that he did not recall anyone being caught up in sole proprietor conflicts of interest provisions. He also said abuses on the Design Review Board at the time prompted these code provisions. o Definitions spelled out by Billings—look at definitions of personal vs. private interest (section K) 2 of 9 Minutes of the Board of Ethics, September 21, 2011 The board discussed Billings definition of personal interest compared to Bozeman's definitions, The following are points from that discussion: o Billings definition more restrictive o National ethics board definition—model code is restrictive. Assuming a big city, deeper pool. o Bozeman's definition is more detailed. o Bozeman—membership or affiliation with exception not within Billing's definition o Bozeman does not have a definition of private interest—anything else that could affect judgment? Perception vs. actual? Distinction between spousal interests to personal interest? o The board discussed examples of how these definitions would apply. Direct connection between proposal/issue and HRDC as opposed to just strong feelings in favor of affordable housing. c What is deliverable? Commission referred to the Board for discussion? Are the current definitions adequate?Add private interest definition? At two separate commission meetings this definition of personal interest was not adequate for them. o Some codes that go beyond nonprofit employment. Non-profit boards that have a direct benefit—receiving money, litigating, etc. o Example: non-profit officer/director has obligations to the board. o From December commission audio: Commission asked for examples of personal interests: nonprofits, neighborhoods vs. associations o The Board discussed examples of issues regarding homeowner associations. o Membership or director in an HOA would not qualify as a personal interest under the current Bozeman definition. o Do we want to define Board director as a personal interest? o What are we trying to protect: appearance? Or pure conflict of financial? o Defining what the issue is involving those boards? o Board of director that takes action in that role— Must recces yourself from voting as either a board member or commission member? o Do we expand the meaning of personal interest from just employed by to being an officer or director on? o Billings— 'close business or political affiliation' —politics, money o Billings: Private interest is much broader and limited to representing and appearing whereas voting is only focused on financial or political interest or nepotism o Broaden definition of personal interest to include board members and officers? Worry that will keep people off of nonprofit boards because many of the same people. o Disclose and recues yourself adequate for getting at transparency? Transparency the goal? Prevention of conflict another goal? o Discussion regarding tie votes and how these affect private interest. 3 of 9 Minutes of the Board of Ethics, September 21, 2011 • Why the Commission wants three votes to pass or fail a vote? Explanation has been to prevent a minority of Commissioners from controlling the decision on any one action. • Audio from past spring: allow someone to vote by not voting. • Validity of conflict—Violation of code of ethics to fabricate a conflict when a conflict did not exist? • Standard of conduct provision: Conduct with propriety, honesty • Very difficult to prove a conflict did not have validity • Interest in expanding personal interest to include board members or directors of nonprofits? Specific situations? Lobbying for legislation, money, suing city? Are we talking about elected officials only or all boards, employees? • Different rules for elected officials vs. appointed officials and employees? • Any officials making a final decision? Mr. Sullivan suggested Board of Ethics members ask community members individually what they think about these issues and how definition changes would affect them. Continued Review of Homework List o Define lines of elected officials vs. other boards. Sole Proprietor issue. List of other boards —red,yellow, green. Staff and Board of Ethics members to both put together separate lists to compare to each other. Criteria': Red = hire and fire, contract authority, financial authority, final decision making authority. Yellow= board holds statutory required public hearings but commission ultimately has final approval authority. The board discussed the list created by Ms. Kissel that contained recommendations regarding how she would classify the boards by the above criteria. (See attachment titled, Citizen Advisory Boards Categorized by Authority) • Mr. Sullivan stated he would agree with Ms. Kissel's list with the exception of placing the North Seventh and Northeast Urban Renewal Board in the red category. • Final decision making authority? Final recommendation vs, binding financial? • The board discussed the individual responsibilities of city boards and there authority. G. FYI/Discussion Mr. Sullivan spoke regarding the annual report to the Commission that needs to take place. Ms. Kissel to draft a summary of what the board has been tasked with and what the board has achieved. Mr. Carraway to speak with Brendan Steele/IT Director regarding setting up an email. Mr. Sullivan reported three recent interpretation questions as it relates to the code of ethics: #1 Background: 4 of 9 Minutes of the Board of Ethics, September 21, 201.1 InterNeighborhood Council—delegates from each neighborhood association meet and make recommendations. Neighborhood associations are not part of city government. They form their own association and receive support from the city. #1 : Members of the INC are not subject to the code of ethics because they are not part of city government. #2 Background: Buffalo Restorations wanted to create a scholarship program to reward the family member of an active firefighter. #2 Opinion: Mr. Sullivan recommended they remove the word reward and open the scholarship to active and retired firefighters to better comply with state law. A picture of the person receiving the scholarship at the firehall was deemed acceptable as long as the specific firehall could not be identified in the picture, #3 Background: A question arose from a member of the Planning Board and Zoning Commission who is an engineer in a large firm in town whether he can present an informal presentation to the Planning staff which may eventually go before the City Commission. #3 Opinion: This person can move forward with this application to the planning staff because it has nothing to do with the Planning Board or Zoning Commission. Note: Board member Chris Carraway left the meeting. H. Discuss research request from Betsy Webb at the Local Government Center regarding the Bozeman Ethics Program—employee survey Mr. Sullivan received more information from Ms. Webb regarding her proposed survey. Ms. Webb would like to conduct a quantitative study gathering responses from Bozeman employees about the ethical culture of the city. The answers would then be compared to another similar city that does not have an ethics board, ethics code and ethics training as Bozeman does. Mr. Sullivan would like anonymous results. Motion .and Vote to allow Betsy Webb to conduct a survey of Bozeman employees regarding the ethics training prop—ram. 5 of 9 Minutes of the Board of Ethics, September 21, 2011 It was moved by Mwr-v Jane McGarj!j, seconded by Melissa Frost to allow Bets Webb to conduct asurvey of Bozeman employees regarding the ethics training program. The motion passed unanimously. Mr. Sullivan will respond to Ms. Webb. G. FYI /Discussion (revisited) Plan for the next meeting, October 19th: • Continue to talk about conflict of interest • advisory board summary and red, yellow green divisions • post employment provisions. • Mock trial - Provision 1.801 the board shall consider complaint within 30 days of attorney analysis. Review and consider complaint and city attorneys analysis and set a hearing • Add to agenda an item titled staff report as a reminder for Mr. Sullivan to report any code of ethics questions that have arisen since the last meeting. Provision 140e—board may render opinions. If appropriate these issues/questions may be brought before the board to assist him in rendering an opinion. Homework list for October meeting: Talk to members of the community about serving on boards and conflicts. Note: The following homework assignments listed on the agenda were partially discussed within other homework topics above. Time constraints would not permit further discussion during this meeting. • Tic votes —rule of three. 2.04.140090 —Come up with recommendation. • Post employment activities= revisit what we did before. Also look at in terms of state law (6 mths)vs. city law (12 mths). Also procedurally - review noticing with the clerk. Citation to state Montana code annotated: 2.2.201; city code: 201.110. 6 of'9 Minutes of the Board of Ethics, September 21, 2011 1. Adjournment Melissa frost adjourmed the meeting at 4:34 p.m. Melissa Frost, Beard Chairperson Prepared by: " Ai; e Kissel, Deputy City Clerk .Approved on: 0 - f 9 — I( Attachment.- Citizen Advisory Boards Categorized by Authority (Ms. Kissel) 7of9 Minutes of the Board of Ethics, September 21, 2011 Citizen Advisory Boards Categorized by Authority Criteria: Red= hire and fire, contract authority, financial authority, final decision making authority. Yellow=board holds statutorily required public hearings but Commission ultimately has final approval authority. Board Name: Justification Audit Committee Advisory only, not created by Ord. or State Band Board Advisory only (not currently active) Beautification Advisory Board Advisory only though they do pursue funding sources in coordination with city staff Board of'Adjustnten'l final decision making authority Board. of'.Appeals, final decision making authority Board ol'I"I'thics final decision making authority for hearings, though not for consequences raises and spends money; No final decision making authority Advisory only. However they do oversee the Historic preservation office (very generally) and make recommendations to the state Historic Office. Tourisi,i,'ii Business frn�:')Yovarncnit District Hires and fires, manages budget, can be sued, etc. Cemetery Advisory Board Advisory only Required public hearings but no final say Cit)-Cmualy Board of"Heafth Responsible for appointing a health officer Community Affordable Housing Advisory Advisory only Community Alcohol Coalition Advisory only 8 of 9 Minutes of the Board of Ethics, September 21, 2011 Do%,vnto)vn Bozeman Improvement DiSLI•Ict Tax inereincnl ]:�'inance (ID /11F) tax increment, hire, fire, budget (though budget is adopted by Commission yearly) 1XnNn1ovvn, Btisiness Irnproverrient District (BID) Red Tax increment, hire, fire, budget (though budget is adopted by Commission yearly) Economic Development Council Advisory only [,'irc Cole Board (.�)f Appeals Final decision making authority on appeals Impact Fee Advisory Committee Advisory only Lihrary Board offrustecs Hire, fire, financial and final decision making Advisory only but recommends a yearly budget, will be making recommendations for small improvement loans, etc. Budget is approved by Commission yearly NO"V'E. N/h- Svilli van WOUld CZ1CgOfi ZCas Rl""D Advisory only but recommends a yearly budget, will be making recommendations for small improvement loans, etc. Budget is approved by Commission yearly NO'"I'E. Mr, Suffivan W'OLdd categorize as R,ED Pai°kin.g Coxnrnisson Hire and fire, financial and final decision making Pedestrian and Traffic Safety Committee not a city board—N/A—green? Pohc,e Cornmission Conducts hearings, decides appeals. Created by State Statute. Prospera Revolving Loan FU.Ild Cornmittee Makes final financial decisions Recreation and Parks Advisory Board Advisory only Senior Citizens Advisory Board Advisory only Advisory to a number of agencies through an MOO. Most final decisions are not made within the Committee but members have quite a bit of power. Tree Advisory Board Advisory only Advisory only, but has required public hearings Advisory only, but has required public hearings 9 of 9