HomeMy WebLinkAbout10-19-11 Board of Ethics Minutes MINUTES OF THE MEETING OF THE
BOARD OF ETHICS
OCTOBER 19, 2011
BOZEMAN, MONTANA
Please Note: The audio 7-ecording ofthis meeting is availohle in the )1der
ft
hay.-Iliveblink.bozeman,qe1jVehLh7k&101 611445061Row1.avpx These minutes are no odfo ,
L
ii,ord and should he 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, October 19, 2011. Present were board members Chris Carraway, Melissa
Frost and Mary Jane McGarity. Also present were City Attorney Greg Sullivan and Deputy City
Clerk Ali-nee Kissel.
A. Meeting Called to Order
Melissa Frost called the meeting to order at 3:02 p.m.
B. Public Comment
Melissa Frost opened public comment.
No person commented.
Melissa Frost closed public comment.
C. Approval of the September 21, 2011 minutes
It was moved by Mary Jane McGarity, seconded by Chris Carraway to approve the
minutes of September 21, 2011 as edited.
The motion passed unanimously.
D. Disclosure of information or comments received.
Mary Jane McGarity was approached by someone at a school board meeting. She called and
discussed the issue briefly with Greg Sullivan and then called the gentleman back and referred
them to Greg Sullivan. Greg Sullivan said the gentleman did not call him.
Chris Carraway spoke with his brother in law to elicit his thoughts regarding the appearance of a
conflict vs. an actual conflict.
1 of 9
Minutes of the Board of Ethics, October 19, 2011
Melissa Frost spoke with three people to elicit thoughts regarding conflict of interest. The main
consensus with all three was that there is no way you can avoid all conflicts. That it should be
more about transparency. Ms. Frost summarized the conversations with each as follows:
15`person:
• Difference between elected and appointed. Elected officials should have more leeway
because they are voted in and people know their positions when they vote them in.
• Perception that the City Commission can skew appointments. Planning Board can be very
powerful. Transparency should be front and center.
• She also talked about reducing the pool of potential board members to nothing if the rules
are too tight.
• Transparency first and always.
• Signing conflict of interest forms. (Did she mean disclosure forms?)
• Can't avoid every conflict so it is best to mostly avoid them; especially before someone is
on the commission or board
• Town too small to get rid of every person that may have a skill or attribute that would be
good on a board(but may have a conflict.)
• (from later in the recording) Brought up Commissioners and their personal interests. For
example, Cr. Andrus may have a personal interest in tourism.
2nd person:
• Try to be as transparent as possible, in a small town can't avoid all conflicts.
• Important to have a good Recusal process.
• Sole proprietors shouldn't present to final decision makers and should revues themselves.
• Perceptions of conflict—leaders have to deal with that all the tillie.
• The rule of 3 is weird.
3rd person:
• Should not be a distinction between sole proprietor and another eniployce at the same
fine. Conflict either way—fault of ordinance.
• Provide transparency, but you won't get rid of all conflicts of interest because small town
• Personal interest should be better defined.
• Change ordinance to allow presenting if there is disclosure.
• Should be same for everyone—elected, appointed or staff.
• Want expertise on boards,but not special interests slamming projects through. How far
does personal interest go? Example: Have a dog that goes to dog park?
• Defining personal interest in pail by personal capacity.
2 of 9
Minutes of the Board of Ethics, October 19, 2011
Mr. Sullivan spoke to the East point regarding personal interest, referring to a case out of
Pennsylvania. "The interest which disqualifies a member to vote is a personal and private one,
not such an interest as he has in common with all other citizens or owners of property.,'
Mr. Sullivan also spoke regarding membership within a homeowners association and how,
depending on the situation and depth of involvement may impart more of a personal interest.
E. Staff Report
Greg Sullivan reported a question that carne to him since the last meeting regarding the request
for proposal process for removal, recycling and demolition of the city owned house behind city
hall. A condition was imposed to the city for(HASB) historical assessment. City staff sought out
professionals to deal with this historical process. He found a person with the required skills at a
local architectural firm. That person is on the city's Historical Preservation Advisory Board and
had previously voted as a board member to impose the historical assessment condition on the
property in question. The staff asked Mr. Sullivan if this was a violation of 0.7013 if this person
participated. Mr. Sullivan instead referred to 0.40 and determined that the architect could not
take the job. He also spoke towards the firm's conflict of interest provisions and the possibility
that if the firm could guarantee that strong provisions were in place another member of the firm
may be able to provide the service. He would first want to review their practices.
The board discussed this issue further.
• Board members revues themselves from initial vote if they want to participate in job later
• Duty to board----potential future conflict versus duty to participate and vote in board
discussions
• If frequent—cannot serve on the board.
• Public perception when you need to revues yourself.
• Sole proprietor and a larger fin-n—when serving on a board have duties of care, duties of
obligation. 'Shouldn't go back.to the firm and talk about board matters.
• How often does this come up? If it doesn't come up often, is it worth looking into`?
Mr. Sullivan was also presented a question during the directors meeting regarding gifts.
• Theme—are we doing the right thing.or over-engineering the code of ethics making it
unworkable?
Scenario#J: Upper level city official and family being invited to an MSU football game to sit
with MSU officials.
Scenario#2: Long time employee being recognized by one of the city's partners in land
conservation for their commitment being given baseball hat and a poster as appreciation for years
of conservation service.
3 of 9
Minutes of the Board of Ethics, October 19, 2011
Scenario #3: At municipal City-Town conferences, vendors attend and have raffle drawings
where attendees place a business card in a bowl to be entered for a prize.
In light of these scenarios the board discussed the gift provision: 2.01.090 `No official or
employee shall accept a gift, gratuity or favor from any person or entity except as authorized by
law.'
In discussing the first scenario:
• The Mayor and Commissioners are invited to everything to represent the city and it is
part of his or her job to attend.
• Difference with family being invited?
• Obligation as Mayor to attend?
• Past City Attorney (Paul Luwe) opinion in May of 2008: Not going to analyze state law
because all gifts are prohibited by city law. City law more restrictive.
• Discussion regarding Commission history regarding writing city gift laws.
• Discussion `except by authorized by law' —makes an assumption that you should go to
state law. This deserves clarity.
• State law nails the intent of the gift while the city gift provision does not.
• If official goes to the game—would have to pay the value of the tickets.
In discussing the second scenario:
• City gift provision is absolute. If the poster and cap stays in the office when the employee
retires he could keep it or pay for the items.
• This deserves clarity gets to the point of ridiculousness.
In discussing the third scenario:
• Most firms try to be aware of the laws and prizes would not likely be over $50. because
they understand Montana state statute and the$50 limit.
• Best practice would be not to put the name in the hat.
• Transfer of gift is a gratuity or a favor.
Discussion occurred of what is included in State Law.
Discussion occurred examining how these scenarios would work if the state code was just
applied and not the municipal code.
• The State definition of gift does not include an award.
• State has it right.
• Mr. Sullivan thinks our code is long and complex or short and too restrictive.
4 of 9
Minutes of the board of Ethics, October 19, 2011
Mr. Sullivan refez-red to documentation collected by Ms. Kissel from past City Commission
minutes highlighting ethics discussions and providing a tirr►eline.
• Mr. Sullivan would like the board to consider an evaluation of some of these provisions
such as the gift provision.
• The board discussed how meeting with other community leaders is important for
fostering relationships and collaborations.
• Dollar cap is meaningful.
The board spoke regarding the importance of hearing from staff what type of issues are coming
up.
Rule of three
The board discussed the rule of three and how it relates to transparency.
Ms. Frost reported that one of the people she spoke with thought a sole proprietor should be
allowed to present if they wrote their conflict in writing and disclosed the conflict at the meeting.
Chris Carraway said the more he thinks about the rule of three, the more he feels it is a practical
rule that we have to live with, otherwise things could come to a halt.
Mr. Sullivan said part of the purpose for the rule of three is to prevent a Commissioner from not
showing up at a meeting because they want something to not happen. This cannot happen with
the rule of three, you cannot avoid the responsibility to vote.
F. Review and consider Mock Trial complaint and City Attorney's analysis and if
applicable set a hearing date
City Attorney Greg Sullivan said the board can look at the complaint and legal decisions
analysis, decide whether to have a mock hearing.
If this was a real hearing, Mr. Sullivan would become very formal at this point.
Chris Carraway asked whether we think there is enough to have a hearing. Is the hearingjust
about factual evidence"?
1.801-_Board shall review and consider the complaint
1.80m - Lists the actions available to the Board during a trial.
Board members reviewed with Mr. Sullivan options available within the code for taking action
on a complaint, discussing some of those options:
5 of 9
Minutes o[the Board oI Ethics, October \9, 2Ol1
• Outside of boards'Juri'mdiodon—E/mmnlc� complaint against Nei nd council
member. Ibcme councils are muparo(c from city government and not subject to the city
ethics code.
• TI facts are not sufficient: looking at what they said in cwmuy|mint—in there u violation?
Looking at the facts that are mdnnitted—ftc| there is avioluTion.
• May not need o hearing if facts are not iodispute
• In the case of the mock trial, the reason for the hearing is to make the parties make the
legal argument rather than to determine facts from witnesses?
At this point in the mock trial, the board is at STcy L. Summarizing the complaint and asking
questions about the complaint wr the response,
Mc Sullivan referred 10 response#3 — 'person neither admits nor dcuica...'
l.cguX advisory looks n1 whether there is a violation of two provisions
• the municipal code V.708 prohibition on having o financial or personal interest
• failed {o disclose relationship on6rococs tkcmuoe|vcy
Mr. Sullivan referred to conflict m[interest having two different standards between state and
local laws.
• Private iutenomL as defined by state lup/
• City ondr stricter oothe definition ofconflict and what inprohibited.
Mr. Sullivan said the mock trial ovoolomiou from the legal advisory states that both statutes were
violated with the dispute from the defendant whether d affected the relationship,
The board discussed the mock trial:
• Having Ojouda vs. one friend paying for the other?
• Disclosure of the relationship was never made even though the Commissioner had
oznlTip|u opportunities. There is a monum that this was hidden,
• Financial interest was violated and possibly personal interest.
• No modifiers within city code
• Commissioner also served on the aobcorunmit(oz
• Financial interest would be the$15. or more value lie obtained staying for free in the
Virgin Islands
Nozim(op—f{cmring Process
Chris Carraway spoke that there is no dispute of fact that Commissioner Johnson violated the
financial interest policy. Even.though the board does not set the penalty, the end of the process is
a penalty which may take into account other violations that make the pcnnHn Worse.
6 o[9
Minutes of the Board of Ethics, October 19, 2011
o Did the Commissioner violate other codes? May find more bad faith in a hearing.
Discussion regarding the penalties that could ensue.
• 1.90 if findings are filed by the board,the commission may then take action to remove or
you can refer complaint if violation of state law to the County Attorney.
• Would there be any reason to have a factual hearing? Would want a hearing because we
may find additional violations during the factual hearing.
• Finding facts for a later part of the process
The board discussed what the advantages would be of having a hearings officer versus
conducting the hearing themselves.
City staff will set the mock trial up for November 16`" from 2 to 6 p.m. asking city employees to
play the parts.
G. Discuss and begin planning annual ethics training for employees, board members
1. Online Ethics Survey—Betsy Webb
Mr. Sullivan referred to an online ethics survey being conducted by Betsy Webb at Montana
State University for her dissertation. Ms. Webb will use a random sample of approximately 146
city employees. She will be comparing city of Bozeman employee responses with responses
received from Kalispell city employees.
Discussion regarding survey:
• Interesting definition of ethics included in the survey
• New employees have not had the online training but have received the handbook.
• Likert scale questions
• How would questions change over time? Our ethics program young.
2. Results from surrey regarding online training
Ms. Frost would like to add to an upcoming agenda, looking at the results received from Paul.
Lachapelle regarding the effectiveness of the online training during a board of ethics meeting.
3. Planning for upcoming ethics training
• Training time frame—Jan. and Feb.?
• Dan Clark with the Local Government Center at MSU was suggesting an in house
training without PowerPoint, etc. Now it is time to play.scenarios?
• Nuances of different situations.
• Small group scenarios?
• Feedback between in person vs. online training was mixed
7 of 9
Minutes of the Board nf Ethics, October 19, 2011
• Most u[the trainees have already been through the 9nwc,Point and online training
• Results from the survey regarding effectiveness of training indicated participants may
vvumt something tailored to what they do
• Tailoring training tn a specific department such as public works'? Could discuss scenarios
that vvnm]Uborclntab]c and with their peers
• Have l.uoa\ (]ovmrozocu\ Center take the lead? Get to the point to start scheduling?
• Depts. to help with scenarios? What have they dealt with? Prep. email? Would help board
members Tnknow what employees are dealing with inreality?
• Approx. 05U people totrain
• Dan and Paul meet with the board? They can put together some ideas—brainstorm—
The board decided they feel confident with the work product that Dan Clark and Paul I.acbunclie
have produced in the past and would like them to move forward with a training proposal they can
send Tn the board via cnoaii The board spoke about having them specifically explore the nulc
proprietor inene, how far personal and financial interests go, post-erop|o}onicm1 activities
(differences boLvvccu state and city code).
Mr. Sullivan will exnui\ Mr. Clark and Mr. l.ucbapel]c. If needed, &4clismo Frost volunteered iu
meet with them asneeded.
Board m{ethics members encouraged tn attend no many ofthe trmioimgsmspossible.
H. Discuss Revisions tV Ordinance No. 1775^ (Previously [759) Conflict ufInterest
Time did not allow for this item. Add this item to the December meeting.
1. FYI /Discussion
l' December meeting moved fw one week earlier, December 14'h, due to the
holiday season.
2. Board Chair position
Ms. Frost said she became chair by picking the short straw a1 the firotmeeting and wanted tV
offer the position if one of the other board members would like the position.
• Terms expire inJuly
• At some nnio{, the City will trco1c rules of procedure for the boards which will have
standard procedures for appointing achair. 0od} then, i1iaup to the board.
After discussion, the board decided to wait until the firstmeeting ofAugust for yearly
nomination and appointment ofm chair and vicc-ohoi,. Due tothe lack ofuvice chair n1 this time,
the board decided To appoint o vice chair during the December meeting.
8 o[9
Minutes of the Board of Ethics, October 19, 2011
J. Adjournment
Melissa Frost adjounied the meeting at 4:55 p.m. �
issa Frost, Board Chairperson
Prepared by:
Ain ice Kissel, Deputy City Clerk
Approved on: f — ( �
Aftachwent: Commission Discussion and Action Tinmeline since 1986
9of9
Co
U)
z
<
U)
c
0
a)
aj a) E
'0 0 0
E
> 0 0
-a 0 E
F 0 0
m U) Ez 0 Cn 0
Y) a) (n .0 C 15 c
L 1 :3 (n 0
0 m a) a) 0
0 -0
E 0)
-a a)
0 0 U)
:3
0) E
a) "0
o
m Ap
oc -000 .0 — '0
C 0 —
Co m -0 0 2 (D 0
Co E c — 03
0) m 0 0 m EL E (D
0)
Ca
4- > 0 0 w
0 (D 0 <
-0 0 '2 m
0 U) 12 m j JZ_
CD a)
0 a) t� 0
D 1E 0 w '45
w 0 C7 :3 1�5 > 0 z -0 0) 0
> (D C a) (D W Cr CD -0 �o 2 .0 V) r (D
m 2 C Z (n (D = Cm 2 0 o �e
(D 0 c o "'- 0 Cr C C: W (a 0 c c
:3 CL a) 0 M 76. — 0) —
D Cf) z
.0 rp -0 p 0 E
.0 C: F,) 0) 02 MOW 7: ,gMCE " 0 — 2
05 w M CL 0 -2 ', Q) — .9 rr
0 U) CL 2 E .2
.U) L2 (n 4:� 0- CL CL 0 U)
.0 0 2
E -E 0 -0 < m CL c c
E "0 a) 0 0 �o 0
E 2 0 0 CL 0 0
0 0 o '6 Cl
o V) _c — K a) >
2i 15 CD 0
a) a) 0 Co a) 0 U) C 2
.0 4j 0 (D 0 — Cri CL 0 0 .0 .0 a) CL
c :E 0 LL 0 _0 0)
W CL 0
E w a) E o :3 a)
-0 4- Cr C3 0) 0) 0 0 M_ .0 c E 0
C: 0 a) -Fo c C: 0. L)
0 0 0 0 2 (0) m m 0 CL cu E
M c
a) CL
0 (D EL m 0
E -OcmcT -O 6 , 2 :3
.0 0 C:
0
Fn
0
CL -0 0 .2 > 2 5 a
o
0 m _0 :3 0 3: a) 0
u) to c a C CL 0 U) U) 0 -0
0_ U) �(n
o m E E Z, -0 a) a)
E 0 a a)
0 E 0 a) m C: 0 �c "0
a) - Z) c E E 0 >, 'M 0 0 �r_ > 76 0
o Z 0 0 C 0 j5 -C 0 U)
0 a) 0 0 0 M Cu E (n
N 0 c m 0 rf ;5 _0 0 0 'F m
0 c 0 0 w M 0 = a) (1) 13)
C 2 .0
.L 70
0 0 Q -0 (n m a) 0 0- -6 c E 0 LD W a)
to -C- M 0 0 0
=$ a) C CD 0 M 0 0 E u 0 0 4:! m
:3 m
L) c) (D (1) 0
0 U) CL 0 c m a�): cc: '2 u) cm c 0")
a) — a) 0 Z3
0 U_ 0 -0 m m c -2 0 (D CO Q) a) .0 ? -D a) .> r-
() 0 (D 0 a (n U 0 — —
j2 0i -a a) E m 0 —0 '20 0 (D o 2 2 0 E
sa r u �o 0 .(n 0 0 "a 0 .0 -0 Fn 0
(D M CL 0 0 0
EL -0
o CO w = 0 E Z (D m :3 0
CM -0 C, 0 (n
0 c c M 0 *0 t — E 0
::� c M -0 c D 0 S =Cu E
V) c 0 LL a) 0 0 0
to CL rn c a) Cn r_ W "2 0 r_ 0 - = 10 -o 0 E a) f
0 tm — C.)
U) U) C a) a) cc 0
0 E u) 0 r_ 0 0) 0 Cu C)
E -o e N c o 0 > L)
E a) 0 cc q) Co cu
z a- c 0 0) to
E
E 0 a) a) L 0 04 0) C)
0 c 0 �c 0 0 CL 0 '2�' 5 E ca 0- CD -0 a 0
-6 CT c 4 C 0
Z t zt = T Cf) c4 E c
-0 0 M
0 o .0 L'a -0 > (D
1 0 0 0
> 2 0 M
0 o 0 'o w :3 0 a) 0 C: CL (D
"D a — 0 0
E a 5, 0 0) 0 2 wl .c E W
0 0 C 0 r_ 0) 0 0) CL cD E m 'o 0
Z - 0 r E " 0 Co
N 4 0 Ca tt= o -0 C) .0 .2 o E E 0
U) (D 0 '2 0
0 0 M 0 Co o CL 0
0 0) 0- CL 0 m a) U) CL
0- 0
m Ca 0 0 CL :3 .2 m 0 a)
Co � Cu 0) C _ m OM 200
0 C c US a "2 0 E -0 -0 c
E u
m 2 " S m 0 < - =) U) c < .2
0 0 0 Co F- 0 0 a) :3 c —
C) r_ (n .0 0- c c -0 W 0 — 0 CL 76 C� E a -ia CL
V5 c 0 0 E w 0 0 0 0 0 =3 r 0
0 0
a) 0 o -0 CD w 0 F- 'r 0 04 0 m 0 -0
0 h U) 0
(o 0 w Ca 0) a) <
w CO rn U5 M c a) C
'6 0 0 0 c n 6, C). :05 "0
E c 0 E —CL
E 0 = z = 5: o 0
0 mLo IS o 2 s w(D cn u) o o COL 2 ul 0. .0 t� C" 4(� 5: 2
p 0) 0- U_ 0 C) C) 0 a- LL_ w 15 5 C) d_ ia < Li- CL -Li- 0 < Cl U, > 0 <
o (D m r_ I I,, rl- m 0� m m m M N N M Itt 00 0 00 N �t t- rl- r*- r*-
�0_ !20- M EOR EOR !RR EO 22 !RO_ EOR �0_ �0_ o CD C' Q Q Q
(D r-- 0 — LO 00 M N 0 M tl- —Ce) 'qt N _N Co C4 U-) m Co
N !R — —
N N It �o Qo t— CO tf) 0110) 0) CD 0 C14 Cn (o 0
C> 0 0101 CD I CD 0 0 C, 0 0 CD I(D
c
0
cn E
0 Q
C? :c
C:
.2 co °
Q
a) co a`a ) C Q U)
�: cl c �? E
S3 Q v}
° u Q
o L �.}
o L 0) 0 C N ca Ul O m
p Q C 0) C) C7 Z3 >
0 0) .0 z O O
.L] C3J CD •� Q Q...... a) 47 � .L C 0 u N CL
': ate) U O O tta O O � O
Q O a) CL a) D CCA � O
E � ° cs
C].. ° M O O Q co � T3 C E C
m W m w CL Q 0) � U E Q E C7 c Ca
c E c �- c °
° W E a) D n � c`7 0) to o 0- y as a>
RS
c 0 p 3 aa)) a o x 0) m
�o Q o o L c- 0 ° c �a
O w 'O a) Q Q CD U C 0 Q a tom!)
>1 <L c � Q � ur o (n ❑. 'D z3 o rn �y
m E ° o cp `.3 v �+ 0 ° w m ¢�
o c c W a) C9 o c Z CL E _m
U "u Q C o ur +o A TS °E
0 ui c UCr)
LP Q Cq o
E o i
wa c±a
c c C3 W o
Q O C CU fl7 C O C O fU' (Q (� S a { C? y
ro U c o o O) M -00 p - o z 2 0 �-
C3 D 07 (/) C) �_ }4' CV 2? CO c W °
a) @ Cd? " cr ?, 0 A >
0) 0 uE`c m m o o ei
to
ro
o o o °C a) U) E o . m 2 L E
° O 0 0 cha U cc n
c .2 c n c
U) m W c E 0 m 2 0
Q c c
� o � ° W C a ° E cn N tll o °Q o 0 "Ch o i
M ' co 'E E (N r 'a- _
M CO ..
a
o ° a° E�o a ° ° rn a) 0 o O tu ° p
CL w Co o W a M o 2 o a) 0 U) v
a) ° ° o us o -a e3 q) W ° r3 c .0� U -2
cn w cs) o _ cp ° c a
o ° v) c E o o c a o C3 c o o o a) ° cn c Q
a g ° "c !o E r c c o .� Q � E r n v c o o ° c
y C) " c Z a)' CL Q "- Q E rJ CL C3) W Ll UY p E C3) E m .G °C3 y 0 r O N
co a) E ° p E o E L c .- cL m Ca L oo o ° r c ° o ua
o Gl E o cCi 0 C o a3 ° u v 0) C) a
-`3 M
0 ` U c O CL
c W O 3
W C a U) ° E � r O - C °c�s
C
n ` O ° � - Aa) a) O O a) Q Q "Fm CL O 0 "C Q ° 6 c ) a to o fl U) Q O c — 0 ° c co o .Q m° �M W w CL CL w c a) . o 0 @ C c 0 Q c c
. O CL w N ` Q O a c O w o C cn
Q -2 7 C L Cn O a C
° U C C C C
11 Q ° y W 2 .2 ° C o s .®c rn - c cn cI— c i w 7, n ° o m n C
w U N o — c
ai
i
CL a) } }� o w E Q_ '� > "° u7' (D o O O O Q O 2 0 57 OCR.. M tn
CL co 4<t OC u.. u.. 0 a. -° U Q LL t21 d LY CL CL CL u ® LL L- U) O U
..........
co Cb Coo co C)o C)o C59 ic�4 (3) 0) (3) !a) C)) C.3) a) (3) 0) 0) 0) CS) 0 C) O C) r r r r
C7 C3 0 C) C) C) C) C) C7 C7 C) C) Ca C? a Q O C) C)
'd• N CC J Co ('J Ca C] Cfl CCa C)) CJ �'- N #�- S'}" [%3 N ':1' N Oo C� Oo r CS)
O C)co Cn C3) CJ CD C? N St Ua (D CC)C) C? C7 r r r O CD C7 C) C) C7 C7 C7 C3 r r r C) O C) r C] C7 C] CJ