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HomeMy WebLinkAbout08-17-11 Board of Ethics Minutes MINUTES OF THE MEETING OF THE BOARD OF ETHICS AUGUST 17, 2011 BOZEMAN, MONTANA Please Note: The audio recording of this meeting is available in the folder hqp:11weblink.bozeman.ne11WebLinkE01Lo111 086IRow I.Wx. 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 Mayors Office, City Hall at 121 North Rouse on Wednesday,August 17"', 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 present were Legal Intern Sherine Fernando, board applicant Chris Carraway and members of the public Crystal and Chris Budeski and Chronicle writer Amanda Ricker. A. Meeting Called to Order Melissa Frost called the meeting to order at 3:01 p.m. B. Public Comment Melissa Frost opened public comment. No person commented. Melissa Frost closed public comment, C. Approval of May 18th and June 8th minutes Motion and Vote to approve May 18th, June 8'h and July 20'h with edits provided by Melissa Frost. It was moved by Mary Jane McGarity, seconded by Melissa Frost to approve the minutes of May 18'h, June 8th and July 20th with edits provided by Melissa Frost. The motion passed unanimously. D. Disclosure of information or comments received. Mary Jane McGarity called Melissa Frost with questions regarding the August I't commission meeting. Ms. Frost informed Ms. McGarity that they could not talk about board related topics outside of the public meeting forum because the two of them constitute a quorum. I of 17 Board of Ethics Minutes, August 17, 2011 Melissa Frost said she did speak with Jerry Pape after the August I" ethics discussion portion of the City Commission meeting as he followed her into the hall and engaged her regarding the discussion. E. Discussion of Mock Trial Legal intern Sherine Fernando provided a brief overview of the purpose of the mock trial for the benefit of meeting guests. She then provided hand-outs furthering the mock trial (see attachments). Mel Frost asked if we have a hearing and make a determination where does it go? City Attorney Greg Sullivan explained that once the Board of Ethics makes a determination,the person or public can decide what action to take and the City Commission could take action. The City manager or directors could also take action if the determination involved an employee. The board would have completed their duties at the time of the determination. Guest Chris Carraway confirmed with Mr. Sullivan that if a case were heard,the board would be following the code provisions within the Ordinance. Ms, Fernando reviewed hand-outs provided to assist them with the mock trial (see attachment). The handouts included the record of complaint and the response from the complaintee and the legal advisory regarding procedural guidelines. During the next meeting board members will decide how to handle the mock trial from here. Mr. Sullivan explained Ms. Fernando provided a good fact pattern and an advisory from the attorney's office. Board members will review the documents before the next meeting. Board members thanked Sherine Fernando for her work on this project. Ms. Fernando's internship has ended and she will be returning to Missoula for College soon. Mel Frost asked the public present if they have any questions regarding the mock trial. They did not. F. Discuss Revisions to Ordinance No. 1775, (Previously 1759) Conflict of Interest (This discussion involves sections 7, 8 and 9 of Ord. 1775.) Procedurally how should the board proceed from here? The board had been working on revisions and now there are further revisions discussed by the City Commission during the August I" Commission meeting. Melissa Frost read aloud the notes she had taken during the City Commission ethics discussion summary on August 1": 2 of 17 Board of Ethics Minutes, August 17, 2011 • Boards—do rules apply equally to elected and appointed officials? • Tie Votes and clarifying only the Commission has that authority and not boards. Commission Rule of three- • Post employment provisions • Clarification of Section K City Attorney Sullivan also had written down the following additional questions, issues the Commission raised during the August 1" ethics discussion: • Definition of personal interest • Whether the rules should be different depending on whether a person is a volunteer appointed official or elected officials related to conflict of interest; and whether it is different if you are a member of a nonprofit board vs. business/employment. • Clarification on the sole proprietor issue. Mr. Sullivan said this is not a clarity issue, but rather a policy issue—where do you want to draw the conflict line? This is a bigger picture discussion. Should there be an outright prohibition? Does it matter what board you are on? Board members discussed how to proceed and their thoughts on the August 1" Commission discussion. • Ms. McGarity indicated she feels the requests from the Commission should guide us. • What does the Commission really want overall? What is their overall philosophy? Do they not want even the appearance of conflict? Rules right now are really rigid. What do we want to do as a city? Is the responsibility to minimize risk to the city? • Determine the Board of Ethics goal and offer recommendation to Commission? If board's goal is transparency vs. preventing all conflict then close to that goal. • Mr. Sullivan said the board should not worry about what the commission wants. Board members should do the analysis and the Commission can take or leave the recommendation. • Ms. McGarity indicated she needs a city tutorial regarding which boards and committees are making financial decisions, etc. • Are there issues filling boards? Maybe not as it relates to potential conflicts of interest, but rather time to volunteer. • Ms. Kissel reported vacancies on boards she hasn't seen long term vacancies previously (zoning and planning boards) but Ms. Kissel was unsure what factors were causing those ongoing vacancies. • Mr. Sullivan provided information on how to learn more about what each board does and what their authority is and gave a brief overview of several of the boards and their differences. 3 of 17 Board of Ethics Minutes, August 17, 2011 • The board decided to place boards into distinct categories. For example those with higher potential for risk, ability to enter into a contract, financial decision making authority would be placed within a red category. Example: parking commission, library, board of adjustment, board of appeals • Other boards in between would be placed within a yellow category. They do not have any final say on decisions but do have statutory required public hearings. Example: Planning Board, Economic Development Council. • Lines vs. issues—lines that we can draw. Elected official line. Financial decision making vs. influence. Revisit the financial disclosure statement. • Post employment issue, sole proprietor issue. Chris Budeski,Public Comment Guest Chris Budeski spoke acknowledging that board members cannot make a recommendation today, but would like to zero in on the issue at hand for him. Mr. Budeski said he needs to make a decision before August 25"' whether to be on the ballot for City Commission or not. He asked members for their opinion on 0.7.0 d. regarding whether sole proprietors could serve on the Commission and if they feel this provision should be revised to allow that. As Mr. Budeski reads that provision currently, if he were elected to the City Commission he would not be able to present to the boards. The Commission has concern of all boards. Mr. Budeski said there is great transparency in Bozeman. Everything that goes to the Commission goes through staff or a board with a report based on the code. If there are any improprieties they will show. With the City Commission it is really transparent. It comes down to a fundamental question, "Should city commissioners be able to submit projects to the boards?" Obviously they can't submit to the City Commission,that is not appropriate, but should they be able to submit to other boards? Should they have that flexibility or not? Ms. McGarity said if you're a sole proprietor and your bread and butter is permitting through the city it is tricky. For that to be your business and then to serve at the top of the decision making body is a lot. Ms. McGarity said that does not mean there would be impropriety but it would open up comment and that tail could be chased repeatedly. Ms. Frost said this comes back to the appearance of conflict. While she understands that this is a small community and sole proprietors have the right to make a living, it always comes back to the appearance of conflict and the way that would dog someone the entire time they served. She has not made up of her mind on this issue after discussing for several years, but she does keep coming back to the appearance of conflict. Chris Budeski, Public Comment Mr. Budeski said he totally understands what Ms. Frost is saying and agrees with her. Mr. Budeski however pointed out the importance of the staff report, Findings of Fact, and the Unified Development Ordinance as the ultimate basis for Commission decisions. There is the other side of the coin, the right of the sole proprietor to serve. Currently the way it reads, the sole proprietor 4 of 17 Board of Ethics Minutes, August 17, 2011 design person is being discriminated against and cannot serve on the Commission, the planning board or the zoning commission unless you find someone to present for you. The balancing act is what is most important for the community as a whole, Ms. McGarity mentioned the wide variety of ways to serve. Ms. Frost asked whether this issue has ever come up previously on the City Commission. Mr. Sullivan said the provision in question has been in effect since 1992. Since Mr. Sullivan has been an employee (April, 2009) this has not come up like it has for Mr. Budeski. This has come up as an issue for the Wetlands Review Board. It may have stopped a person similar to Mr. Budeski for applying to run for City Commission. Mr. Sullivan asked board members to consider within a land use context that due process has two sides to it. One side is to the protect applicant to ensure there is no prejudgment bias. At the same time the law will give certain procedural and substantive rights to the neighbors. The rules dealing with prejudgment bias, the appearance of fairness are designed to protect the property owner and those who may be opposed to the project. Mr. Sullivan said when this section of the code was adopted in 1992 it was adopted on a 3-2 vote. The minutes reflect that this issue of sole proprietors being able to serve and conduct their business was at the heart of their discussion. Mr. Sullivan read some of the concerns voiced in those prior minutes. He also said there was discussion in the minutes from 1992 during final adoption where the staff identified that the only way to avoid a problem was to allow city officials to represent projects before the board on which they serve, simply by announcing their representation, stepping down from the board and not participating in any board discussions or recommendations to the Commission. One of the Commissioners said the issue is the perception of impropriety by the public while acknowledging the small nature of the community, Mr. Sullivan said he could call Ron Brey and Paul Luwe and see if they saw this issue arise while they worked for the city. Chris Budeski, Public Comment Mr. Budeski suggested looking at the boards in general. Mr. Budeski was working on the Planning Board on some great projects and he had to step off. All the other Boards in the realm of development make recommendations. We want to retain the ability for the experts to serve on those boards. Mr. Sullivan,responding to a question from Mr. Budeski said that a member of the Planning Board could not present to another board if the project was of concern to the Planning Board. They could present if it was not of interest to the planning board. Mr. Sullivan provided an example. 5 of 17 Board of Ethics Minutes, August 17, 2011 Mr. Sullivan explained that Mr. Budeski currently has to send in a disclosure letter when he presents in front of all boards, even boards that would not have an interest, because he is now subject to the post-employment activities provisions. Chris Budeski,Public Comment Mr. Budeski confirmed that he could still serve on the Planning Board and take proposals to other boards as long as the Planning Board did not have an interest in the proposal. Ms. McGarity asked whether there are situations that occur when the normal route for a proposal is circumvented. Mr. Sullivan responded to Ms. McGarity's question explaining that the only example of that he can think of, is when applicants request that the City Commission review their proposal rather than the Board of Adjustment. Mr. Sullivan provided an example. Chris Budeski,Public Comment Mr. Budeski thanked the board and said he has a good understanding,though the discussion is not over. May be a matter of saying the perception of conflict outweighs the value of expertise. Ms. Frost spoke regarding the line between elected official and appointed board member. Chris Budeski, Public Comment Mr. Budeski explained he was concerned about the sole proprietor issue and was not planning on running for Commission, but a lot of people called him and asked him to run. Ms. Frost asked for a copy of the 1992 minutes. Ms. Frost asked Mr. Sullivan to speak with former employees Ron Brey and Paul Luwe. Chris Budeski and Amanda Ricker left the meeting. Mr. Sullivan spoke regarding the appearance issue vs, the legal issue. The law may let you go pretty far down the line than what the public perceives. The conflict rules try to match the rules themselves with the appearance. This is what happened in 1992. Does this still work? Has the public's perception shifted so we can change the rule? Or the corollary, do you want to push the perception with the rule? The board discussed how very little of what the Commission makes decisions regarding would actually have anything to do with a sole proprietors interests. A sole proprietor could do a great job serving on the Commission and would rarely need to step down due to a conflict of interest. The problem would not occur with serving, but rather because the proprietor would not be able to represent his or her clients. The perception of the public could be that even if the Commissioner only needed to step down to avoid a conflict 10% of the time, the perception may cloud the rest of the decisions. 6 of 17 Board of I-'thics Minutes, August 17, 2011 Chris Carraway, Public Comment Mr. Carraway said that there perception may be that if he is in such a position of power, the fact that he is the highest level of government may place pressure even if he recuses himself from those positions. The board discussed this issue of pressure. Mr. Sullivan spoke regarding a City Attorney opinion from Jim Nugent of Missoula. Mr.Nugent provided an opinion regarding whether a city elected official could testify before the planning board with respect to an application that would then be coming back to the City Commission(see attachment). It was not the Commissioners application, but rather them testifying as a citizen. Mr. Nugent goes into the appearance of fairness doctrine. His conclusion is that the council public hearing has to have the appearance of impartiality and fairness and should be heard by objective elected officials. If you have shown some pre-city council public hearing conduct that would indicate impartiality or prejudice by the time that got in front of you, you cannot hear it. This is based on the principles of the appearance of fairness. Things are weighed in the favor of conflict. The board discussed homework assignments to compare tangible language: o Specific homework list • Definitions spelled out by Billings—look at definitions of personal vs. private interest (section K) • 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. • Tie votes— rule of three. 2.04.140090 — Come up with recommendation. (The board discussed this provision related to why the Commission chose to make this rule in the first place.) • Ms. Kissel to clip audio about rule of three from rules of procedure Commission discussion. Ms. Kissel to work on getting audios to members in Soniclear version instead of MP3 so length of audio will be displayed. • 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. Board members discussed this provision. The definitions are somewhat problematic. Look at what we tried to do in 2009. 7 of 17 Board of Ethics Minutes, August 17, 2011 • Non profit issue. Absence of a private interest definition? 0.70 e. related. If you are a member of a nonprofit board or acting as a citizen, are you conflicted? • Mock Trial - Read paperwork. Ms. Kissel will review homework list tomorrow and email it to board members. G. FYI/Discussion • The next meeting will take place September 21, 2011 at 3 p.m. • Permanently changing meeting time to 3 p.m. • August 291h the City Commission will consider Chris Caraway's appointment to the Board of Ethics. The audio of this meeting is available online. H. Adjournment Melissa Frost adjourned the meeting at 4:44 p.m. issa Frost, Board Chairpers Prepared by: Ai ee Kissel, Deputy City Clerk Approved on: C) —Z-( Attachments: Mock Trial: Complaint Mock Trial: Factual Background Mock Trial: Response Mock Trial: Legal Advisory Missoula City Attorney Opinion 2011-005 8 of 17