Loading...
HomeMy WebLinkAboutboard of ethics, position summary 6-11 Commission Memorandum       REPORT TO:            Honorable Mayor and Deputy Mayor  FROM: Melissa Frost and Mary Jane McGarity, members of the Board of Ethics SUBJECT: Board of Ethics position summary regarding revisions to the Code of Ethics within Ordinance 1775 (previously 1759). RECOMMENDATION: Review, discuss and provide feedback on the following summary of revisions prepared by the Board to clarify and strengthen the City Code of Ethics. 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. The Board of Ethics and City Attorney Sullivan revisited the provisions in question and reviewed the audio recordings of Commission and staff discussion during the December 7, 2009 meeting. The Board now feels that informal feedback from several Commissioners would be helpful prior to a public hearing to gain additional insight. Thus, the Board would like to invite you, Mayor Krauss and Deputy Mayor Becker, to a Board of Ethics meeting. 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. After careful review, the Board of Ethics has concluded that most of the original suggestions still seem appropriate. The following summary of changes made to sections 7, 8 and 9 are taken from the original memorandum. Please note discussion points in purple provided by the Board of Ethics to explain their position. Section 7: 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 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. 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. Board of Ethics discussion points on Section 7 amendments: Some of the amendments are important for clarity purposes from one section to another. Definition of personal interest better defined? The Board discussed the Commission’s ‘rule of three’ which mandates that in the case of a tie vote the Commissioner with a conflict is forced to vote to break the tie. The Board is very concerned that this rule gives the final decision making authority to the conflicting member, causing a serious ethical dilemma and opens the potential for the vote to be contrived. While the board recognizes the Commission has recently chosen to keep the ‘rule of three’ in the Rules of Procedure, they would like to respectfully state for the record that they feel a motion should die if a tie vote is reached as Roberts Rules of Order indicates. Section 8: 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. Board of Ethics discussion points on section 8 amendments: Board members discussed the difference between the state time frame of 6 months for post-employment restrictions and the cities 12 months. They felt 12 months was chosen by past city officials because it is less likely after 12 months that an item would come before the Commission that a former Commissioner had authority over the matter. Section 9: This section clarifies 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 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. Board of Ethics discussion points on Section 9 amendments: This section provides a mechanism for post-employment activities with a specific notice provision. Under state ethics statutes there is no mechanism. The notice requirements have been specifically stated because a notice needs to be out in the open to be affective. The code now states that a disclosure just needs to be on ‘file’, which does not make it easy for anyone to see or know about the disclosure. Changes dictate that the disclosure be posted prominently or if past the 10 day timeframe for disclosing on paper, the person must state their disclosure at the public meeting they are speaking at. The point being that people know about the conflict and the process is open. Other amendments are important for clarity between state and city statutes. Attachments: Staff Memorandum and Draft Ordinance 1775 from the December 7, 2009 City Commission meeting. May 15, 2011 Board of Ethics draft minutes. Audio linked here. June 8, 2011 Board of Ethics draft minutes. Audio linked here.