HomeMy WebLinkAbout11-26-07_Finally Adopt Ordinance No_ 1726, Ethics_12
Commission Memorandum
REPORT TO: Honorable Mayor and City Commission
FROM: Paul Luwe, City Attorney
Chris Kukulski, City Manager
SUBJECT: Ethics Ordinance
MEETING DATE: Monday, November 26, 2007
BACKGROUND: At the Commission meeting on Tuesday November 13th, you passed on
first reading Ordinance 1726 with two changes: 1. the ordinance number be changed from 1727
to 1726; and 2. that, pursuant to my recommendation, additional language be added to reference
violations of the state law ethical provisions of Title 2, Chapter 2, Part 100 of Montana Code
Annotated.
A question arose about the procedure for removal of a Commissioner for an ethics violation. The
Charter provides in Article VI, Section 6.03 that the power of recall is reserved to the electors of
the City as provided by state law. The Montana Recall Act is set forth in MCA, Title 2, Chapter
16, Part 600. The grounds for recall are set forth in MCA Section 2-16-603(3) which reads:
(3) Physical or mental lack of fitness, incompetence, violation of the oath of
office, official misconduct, or conviction of a felony offense enumerated in Title
45 are the only grounds for recall. A person may not be recalled for performing a
mandatory duty of the office that the person holds or for not performing any act
that, if performed, would subject the person to prosecution for official
misconduct.
The particular violation must constitute one of the aforementioned grounds. A qualified
elector of the City then can file a petition for recall after gathering 20% of the qualified
electors’ signatures based upon the previous election. If at a special election, a majority
of the voters approve the recall, then the office is considered vacant and must be filled in
accordance with the state law. The Charter also provides that there is a forfeiture of office
if a commission member violates “any express prohibition of this charter.” Whether an
ethics violation is an express violation of the charter is likely to depend on the precise
facts of the violation.
The proposed ordinance provides for three different types of ethics opinions: an advisory
opinion issued by the Ethics Board; informal advisory opinion issued by the City
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Attorney; and a Formal Advisory Opinion issued by the City Attorney. Only the latter,
the Formal Advisory Opinion issued by the City Attorney, would an employee or official
be immunized for following the opinion in good faith, and then only for ordinance
violations and not state law violations. At your previous meeting, most of the objections
raised were related to this immunization. The objections came from previous study
commission members. However, a review of the Study Commission minutes indicates
that such a provision was an important provision to the City Commission. At the June 6,
2006 joint meeting of the Commissioners, Mayor Krauss suggested that charter contain
such a provision. Study Commissioner Brian Close “confirmed operating under the
advice of the City Attorney indemnifies the official or employee; and he will consult with
City Attorney Luwe on possible inclusion of such a statement in the charter.” The good
faith provision supports the policy of having employees seeking to do the right and
ethical action rather than guessing of what is the correct action. This provision is based
upon a federal government provision of encouraging ethical conduct.
RECOMMENDATION: That you adopt this ordinance.
FISCAL EFFECTS: Undetermined at this time. However, the ordinance will likely
have fiscal ramifications for establishment and funding the Ethics Board and on the work load of
the City Attorney’s office and the Finance Office.
ALTERNATIVES: As may be recommended by the Commission.
Respectfully submitted,
_________________________________ ____________________________
Paul J. Luwe, City Attorney Chris A. Kukulski, City Manager
Attachments: as
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ORDINANCE NO. 1726
AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF
BOZEMAN, MONTANA PROVIDING THAT THE BOZEMAN
MUNICIPAL CODE BE AMENDED BY REVISING CHAPTER 2.01 OF
SAID CODE; PROVIDING FOR THE AMENDMENT OF CHAPTER
2.01 TO CONFORM TO THE ADOPTED BOZEMAN CHARTER BY
ADDING NEW SECTIONS ON FINANCIAL DISCLOSURE, POST
EMPLOYMENT PROHIBITIONS AND CREATION OF ETHICS
BOARD AND AMENDING SECTIONS 2.101.020, DEFINITIONS, AND
2.01.040, STANDARDS OF CONDUCT.
BE IT ORDAINED by the City Commission of the City of Bozeman, Montana:
Section 1
That Chapter 2.01 of the Bozeman Municipal Code be amended so that Bozeman Municipal
Code Chapter 2.01 shall read:
“2.01.010 Declaration of Policy
The proper operation of the city government requires that public officials and employees
be independent, impartial, and responsible; that governmental policies and decisions be made in
the proper channels of the governmental structure; that public office and employment not be used
for personal gain; and that the public have confidence in the integrity of its government. The
purpose of this code of ethics is to set forth standards of ethical conduct, to assist public officials
and employees in establishing guidelines for their conduct, to foster the development and
maintenance of a tradition of responsible and effective public service, and to prohibit conflict
between public duty and private interest. Nothing herein shall be construed to relieve any
employee or official of the responsibilities set forth in Sections 2-2-104, 2-2-105, 2-2-125, 2-2-
131, and 7-5-4109 of the Montana Code Annotated.
2.01.020 Definitions
As used in this chapter, the following terms shall have the following meanings, unless the
context clearly indicates that a different meaning is intended:
A. "Agency" means the City Commission and all other agencies, board, committees,
departments, and offices of the city, without exception.
B. "City" means the "City of Bozeman", Montana.
C. "Confidential information" means any information which is not available to the general
public and which is obtained only by reason of an official's or employee's position.
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D. "Employee" means all individuals employed by the City and its agencies, but does not
include independent contractors hired by the City, City Commissioners, or any
Municipal Judge.
E. "Financial interest" means any ownership interest, contractual relationship, business
relationship, or other interest which will result in a monetary or other material
benefit to an official or employee, either tangibly or intangibly, which has a value of
more than fifteen dollars, other than his or her duly authorized salary or
compensation for his services to the city, and which interest is not common to the
interest of all other citizens of the city. The following financial interest shall be
imputed to be those of an official or an employee of the city:
that of a spouse or child of an official or employee; that of any prime
contractor or subcontractor of the city, in which the official or
employee or any member of his or her immediate family has any direct
or indirect interest as the proprietor, by ownership of stock or
partnership interest.
F. "Immediate family" means spouse and children.
G. "Officials" means all officers and members of the city's agencies, whether elected or
appointed, whether paid or unpaid, whether permanent, temporary, or alternate, and
that are not employees.
H. "Personal interest" means any interest in the matter which would affect the action of
the official or employee other than a financial interest, and other than an interest
because of membership in, or affiliation with, but not employment by a social,
fraternal, charitable, service, educational, religious, governmental, health service,
philanthropic, cultural, or similar nonprofit institution or organization.
I. “Public servant” means officials and employee as defined in this section.
I. "Transaction" means the offer of, or the sale, purchase, or furnishing of, any real or
personal property or services, by or to any person or entity directly or indirectly, as
vendor or vendee, prime contractor, subcontractor, or otherwise, for the use and
benefit of the city or of such other person or entity for a valuable consideration.
2.01.030 Persons Covered
All city officials and employees shall be bound by this chapter.
2.01.040 Standards of Conduct
A. Officials and employees have an obligation to act morally and honestly in discharging
their responsibilities.
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B. Officials and employees shall conduct themselves with propriety, discharge their
duties impartially and fairly, and make continuing efforts toward attaining and
maintaining high standards of conduct.
C. Each official or employee serving on a multimember agency is expected to devote the
time and effort necessary to the successful functioning of such agency.
D. No official or employee shall improperly use, directly or indirectly, his city position to
secure any financial interest or personal interest for himself or others.
E. No official or employee shall, for any reason, use or attempt to use his position to
improperly influence any other official or employee in the performance of his official
duties.
F. No employee shall act in a private capacity on matters that they are directly
responsible for as an employee,
G. No official shall act in a private capacity on matters acted upon as an official.
2.01.050 Use of City Resources
No official or employee shall use, or permit the use of, city-owned vehicles, equipment, material,
or city personnel for personal use of the employee or official or anyone else or to be used in any manner
prohibited by state statutes or city ordinance. No city automobile shall be used by a city employee or
official going to or from home, except when such use is for the benefit of the city, as in the case of an
employee on call outside of the employee's working hours.
2.01.060 Treatment of the Public
City officials and employees represent the city government to the public. In their contact with the
public, officials and employees must bear in mind their role as public servants. Each member of the public
should be treated courteously, impartially, and fairly.
2.01.070 Conflict of Interest
A. No official or employee shall engage in any employment or business which conflicts with the
proper discharge of his official duties.
B. No official or employee shall have a financial or personal interest, tangibly or intangibly, in
any transaction with the City as to which he has the power to take or influence official
action unless full public disclosure is made. If an official or employee has any tangible or
intangible financial or personal interest in the outcome of any matter coming before the
agency of which he is a member or by which he is employed, such official or employee shall
publicly disclose on the record of the agency, or to his superior or other appropriate
authority, the existence of such financial or personal interest. An official or employee
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having such a financial or personal interest shall not engage in deliberations concerning the
matter, shall disqualify himself from acting on the matter, and shall not communicate about
such matter with any person who will participate in the action to be taken on such matter.
C. 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.
D. No official, whether paid or unpaid, shall represent or appear on behalf of any individual or
entity in any action or proceeding of concern to the agency on which that official serves,
either before that agency or any other agency of the city, or before the City Commission, or
take any appellate proceedings from any action of such agency or the Commission. Such
representation may be made by an official's associate or partner, provided no reference to
the participation of the involved official is made except for certification or other required
identification on prepared documents. The involved official shall not engage in
deliberations concerning a matter represented by an associate or partner, shall disqualify
himself from acting on the matter, and shall not communicate about such matter with any
person who will participate in the action to be taken on such matter.
E. Nothing in this section shall be interpreted or construed to prohibit any official or employee
from exercising his legal rights as to his own personal interests in a matter pending before
the City or any of its agencies, or to prohibit an official or employee from testifying as a
witness in any administrative or judicial proceeding. However, no official or employee who
represents his own personal interest before an agency of which he is a member, or a member
of an agency to which the matter may be appealed, shall participate in the decision of that
agency or the appellate agency.
2.01.080 Confidential Information
A. No official or employee shall, without legal authority, disclose confidential information
concerning the personnel, property, government, or affairs of the city.
B. No official or employee shall use confidential information to advance his own financial or
personal interest or the financial or personal interests of any other person.
C. Nothing in this section shall be interpreted as prohibiting the disclosure of information
required by law to be disclosed.
2.01.090 Gifts, Gratuities, and Favors
No official or employee shall accept a gift, gratuity, or favor from any person or entity, except as
authorized by law.
2.01.100 Financial Disclosure Statement.
The Ethics Board shall prepare for approval by the City Commission a financial disclosure statement
form, and recommendations for filling deadlines, procedures, and who must file.
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2.01.110. Post Employment Activities.
No former public servant:
A. during the 12 months following the date on which he or she ceases to be a public servant, may,
for compensation, on behalf of any person other than a governmental entity, make any formal or
informal appearance before, or negotiate with, any decision maker in connection with any matter
which might give rise to a judicial or quasi-judicial proceeding and which was under the public
servant's direct responsibility as a public servant within 12 months prior to the date on which he
or she ceased to be a public servant;
B. may, for compensation, 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 and which might give rise to a judicial or quasi-judicial proceeding involving the City;
C. shall use or continue to use any former official City title, including use on business cards or
stationary, following termination of employment with the City, except that such use is not
prohibited if the public servant indicates that the employment with the City was former to
current employment.
2.01.120. Board of Ethics.
A. There is created a Board of Ethics consisting of three (3) members who are residents of the City
and shall serve without compensation unless the governing body provides otherwise. Members
of the Board of Ethics shall not be elected officials, persons appointed to elective office, full-
time appointed officials whether exempt or nonexempt, or City employees, nor shall they be
currently serving on any other City board or commission.
B. Members of the Board shall be residents of the City and shall hold no elected public office nor any
other City office or employment.
C. Board members shall be appointed by the governing body. An appointment to fill a vacancy shall
be made by the appointing authority who appointed the member who formerly held the position
which is vacant.
D. The Board shall select its own presiding officer from among its members.
E. Board members shall serve staggered terms of two (2) years. A member shall hold office until a
member's successor is appointed. At initial appointment of the members of the board, one of the
initial members shall be appointed for a term of three (3) years and thereafter for a term of one
(1) year.
F. The governing body shall provide such staff support for the Board as the governing body
determines to be necessary for the Board to fulfill its duties. The City Attorney is designated to
be the legal advisor for the Board, except that the City Attorney is not authorized to represent
the Board in any legal action if doing so would create a conflict which would prevent the City
Attorney from also representing the Mayor, the City Manager, or the governing body. The City
Clerk shall serve as Recording Secretary to the Board and shall provide such administrative
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services to the Board as may be necessary. Neither the City Attorney nor the City Clerk shall
be eligible for appointment as board members.
2.01.130. Duties and Powers of the Board.
A. The Board shall, in addition to its other duties:
(1) adopt written rules governing its procedures and providing for the holding of regular
and special meetings, which rules shall be subject to the approval of the governing body; a copy
of the rules shall be filed with the City Clerk; and
(2) administer oaths;
(3) conduct hearings as needed to hear and decide specific cases in which a violation of
this Chapter or a violation of Title 2, Chapter 2, Part 100 of Montana Code Annotated is
alleged, whether such cases arise from a complaint or are brought on the Board's own motion;
and
(4) no later than December of each year, submit an annual report to the governing body
concerning its action in the preceding year; the report shall contain
(i) a summary of its decisions and opinions, both open and confidential; the
Board shall make any alterations in the summaries necessary to prevent disclosure of any
confidential information pertaining to any individual or to any organization if the disclosure
could lead to the disclosure of the identity of a person who is entitled to confidentiality; and
(ii) recommend any legislative or administrative actions regarding the City's
policies and practices which the Board believes would or could enhance the ethical environment
in which public servants work; and
(5) establish a process for systematically and regularly evaluating all significant aspects of
the administration and implementation of this Chapter, which shall include an annual review of
the full scope of operations of the Board and its procedures, and which shall insure that the
both the public and all public servants are provided a reasonable opportunity, and are
encouraged, to participate in the process; and
(6) prescribe and make available forms for use under this Chapter; and
(7) when it deems it appropriate, request the City Attorney for assistance in compelling
the production of documents and witnesses to assist the Board in the conduct of any
investigation.
(8) when circumstances make it necessary to do so, retain outside legal counsel and other
experts as needed after solicitation of recommendations from the City Attorney (unless the need
to retain outside counsel is caused by a conflict involving the City Attorney's Office), and upon
approval by the governing body of a contract for services approved as to form by the City
Attorney; and
(9) serve as legal custodian of the Board's records, and accept, file, maintain and
administer, in accordance with all applicable laws, any information related to the purposes of
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this Chapter; and
(10) make financial disclosure statements filed with the Board available for public
inspection and copying facilities available at a charge which is the minimum amount permitted
under applicable law. All open opinions of the Board shall be filed with the City Clerk and are
open to public inspection. To the extent permitted by law, confidential opinions and any records
obtained or filed in connection with requests for confidential opinions, whether the records are
written, tape recorded, videotaped, or otherwise recorded shall be kept confidential; and
confidential advisory opinions rendered shall be closed in whole to public inspection.
Confidential opinions and summaries of them or open references to them shall be drafted in
such a way as not to reveal confidential information.
(11) compile and maintain an index to all financial disclosure statements currently on file
with the Board to facilitate public access to such statements; and
(12) develop a plan for implementation of a program to educate public servants who are
subject to this Ordinance and the public about their rights, duties and responsibilities hereunder;
and
(13) within one year from the effective date of this Ordinance, submit to the governing
body for its approval and promulgation, an ethics handbook for the use of all public servants
and the public; the personnel department shall document that each City officer and employee
receives a copy of the handbook and acknowledges receipt of the handbook in writing; and
(14) in coordination with the City Attorney, City Manager, and other appropriate City
personnel, arrange for the conduct of an annual workshop, which shall serve as an orientation
for new Board members and an opportunity for experienced members to explore specific issues
in depth; attendance at this workshop shall be made a condition of service as a member of the
Board, and, before taking office, Board members shall commit themselves to attend it.
B. The Board may:
(1) conduct hearings as it determines necessary or appropriate
(i) to ascertain public opinions and to gather information from the general public,
employees, or others regarding any aspect of the City's ethics policies or practices; and
(ii) for any other purpose for which the Board is authorized to conduct hearings;
and
(2) respond, as it deems appropriate, to requests for confidential advisory opinions; the
Board may decline to render an opinion in response to any request for an advisory opinion;
(3) render and publish formal opinions on any matter within the scope of the Board's
authority which it may deem appropriate; the Board may initiate opinions on its own motion or
upon request; any formal opinion shall be in writing; and
(4) prepare and publish special reports, technical studies, and recommendations to further
the purposes of this Ordinance.
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2.01.140. Who May Request Board Action.
A. Any person may file a complaint with the Board, and any public servant, prospective public
servant or former public servant, either personally or on behalf of an organization or
governmental body, may request of the Board an ethics opinion, whether a formal opinion or a
confidential advisory opinion, regarding the propriety of any matter or matters to which the
person is or may become a party; and any decision maker, with the consent of a prospective
appointee, may request of the Board an ethics opinion regarding the propriety of any matter to
which the public servant, prospective public servant or former public servant is or may become
a party.
B. Any request for Board action shall be in writing, and shall be signed by the person making the
request.
2.01.150. Limitations on Board's Power.
The Board does not have the authority to reverse or otherwise modify a prior action of the Mayor,
governing body, or an officer or employee of the City. If the Board finds a prior action of the Mayor, the
governing body, officer or employee to have been ethically improper, the Board may advise the appropriate
party or parties that the action should be reconsidered. Upon such advice by the Board, the action shall be
reconsidered by the appropriate person or public body. If the Board determines an existing City contract to
be ethically improper, after such determination and advice from the Board, the City may void or seek
termination of the contract if legally permissible. The Board may refer a matter to the City Attorney for
review and consideration for appropriate action. Upon completion of review and consideration, the City
Attorney's Office shall report its findings to the Board.
2.01.160. City Attorney Opinions
A. at the request of a person, the City Attorney may render an informal or formal advisory opinion with
respect to the prospective conduct of such person. An informal advisory opinion need not be
written, and may be provided directly to the requestor of such opinion. A request for a formal
advisory opinion must be in writing and include all the information and documents related to the
request. The request for either an informal or formal advisory opinion must state all the material
facts so the City Attorney may render a complete and correct opinion. The City Attorney’s
formal advisory opinion must be in writing. Nothing in this Chapter shall be construed to
prohibit a request for an opinion by any public servant from the City Attorney regarding a
potential conflict of interest. Neither a request for an informal or formal advisory opinion, nor the
making of a statement concerning a potential conflict of interest made by a member of the City
Commission in the course of abstaining from voting or making a motion of self-recusal, shall
create a presumption or inference that a public servant actually has a personal interest in the
matter about which the opinion was requested; if the City Attorney elects to render an opinion,
the City Attorney shall, within a reasonable time, submit a written summary of the opinion to the
Ethics Board for the Board's information; if the City Attorney declines to render an opinion,
nothing shall preclude the person requesting the opinion from requesting the Ethics Board for an
opinion.
B. Any formal advisory opinion issued pursuant to Section 2.01.250 may be relied upon by the person
directly involved in the specific transaction or activity to which such advisory opinion has been
issued; and any person directly involved in any specific transaction or activity which is
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indistinguishable in all its material aspects from the transaction or activity with respect to which
such advisory opinion was rendered.
C. Any person who relies upon a formal advisory opinion pursuant to this section, and who acts in good
faith in accordance with the provisions and findings of such opinion, shall not, as a result to such
act, be subject to prosecution under this Chapter or, in the case where the opinion is exculpatory,
be subject to any administrative adverse action or civil action based upon legal authority cited in
that opinion.
D. The City Attorney’s client is the City of Bozeman and not the individual requesting the opinion. No
request for an opinion from the City Attorney shall constitute the establishment of an attorney-
client relationship with the individual requesting the opinion.
2.01.170. Procedures for Hearing Complaints.
A. Any person may file a written complaint, signed and sworn, with the City Clerk alleging a
violation of this Chapter or a violation of Title 2, Chapter 2, Part 100 of Montana Code
Annotated.
B. A complaint shall specify the provisions of this Chapter or provisions of Title 2, Chapter 2, Part
100 of Montana Code Annotated alleged to have been violated and facts alleged to constitute
the violation.
C. Upon receipt of such a complaint, but in any event not later than three (3) working days after
receipt, the City Clerk shall acknowledge receipt to the complainant(s), and forward the
complaint simultaneously to the Board, the person who is complained against and the City
Attorney.
D. The City Attorney shall provide the Board with a preliminary written analysis of the complaint no
later than thirty (30) days from the date the complaint is filed with the City Clerk.
E. During any investigation and during any hearing which is conducted to determine whether a
violation of this Chapter or a violation of Title 2, Chapter 2, Part 100 of Montana Code
Annotated has occurred
(1) the person under investigation or the accused may be represented by counsel of his or
her own choosing; and
(2) the accused or his or her representative, if any, shall have an opportunity to
(i) challenge the sufficiency of any complaint which has been filed against him or
her; and
(ii) examine all documents and records obtained or prepared by the Board in
connection with the matter heard; and
(iii) bring witnesses; and
(iv) establish all pertinent facts and circumstances; and
(v) question or refute testimony or evidence, including the opportunity to confront
and cross-examine adverse witnesses; and
(vi) exercise, to the extent the Board, in its discretion, determines to be just and
reasonable, any pretrial discovery procedure usually available in civil actions.
F. The following principles shall apply to evidence in connection with hearings conducted by the
Board:
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(1) The Board shall not be bound to adhere to statutory Rules of Evidence, but shall be
fundamentally fair in its administration of evidence; and
(2) During any hearing conducted by the Board to determine whether a violation of this
Ordinance has occurred, all evidence including certified copies of records which the Board
considers shall be fully offered and made a part of the record in the proceedings; and
(3) The accused or any other person under investigation shall be afforded adequate
opportunity to rebut or offer countervailing evidence; and
(4) The Board shall inform the accused or his or her counsel of exculpatory evidence in its
possession; and
(5) The standard of evidence in hearings conducted under this Chapter shall be clear and
convincing evidence admitted at the hearing.
G. The Board, in addition to its other duties and powers, may:
(1) appoint a hearing officer to conduct hearings under this Chapter; and
(2) with the approval of the governing body, retain outside legal counsel and other experts
as needed with respect to hearings in accordance with its policies. The selection of a hearing
officer and outside counsel and other experts and any contract for such persons shall be made
after solicitation of recommendations from the City Attorney and upon approval by the
governing body of a contract for services approved as to form by the City Attorney; and
(3) order testimony to be taken by deposition before any individual who is designated by
the Board and, in such instances, to compel testimony and the production of evidence to the
extent it is otherwise lawfully authorized to do so; and
(4) require any person to submit in writing such reports and answers to questions relevant
to the proceedings conducted under this Chapter as the Board may prescribe, such submission
to be made within such period and under oath or otherwise as the Board may determine; and
(5) request and obtain from the Department of Revenue copies of state income tax
returns and access to other appropriate information as permitted under state law regarding all
persons who are the subject of such investigation.
H. The person complained against shall have twenty (20) days from the day after the City Clerk
serves the complaint on the person to submit a written response to the complaint prior to the
Board deciding whether to hold a hearing. Service may be by certified mail, return receipt at
the last know address in City Records or personal service.
I. If the complaint is dismissed, the complainant(s) shall have one opportunity within fifteen (15)
days of the dismissal to amend the complaint and to refile it with the Board.
J. Any person whose name is mentioned or who is otherwise identified during a hearing being
conducted by the Board and who, in the opinion of the Board, may be adversely affected
thereby, may, upon request of the person or a representative of the person, or upon the request
of any member of the Board, appear at the hearing to testify on his or her own behalf or have a
representative appear to so testify, and the Board may permit any other person to appear and to
testify at a hearing.
K. Upon request of the accused, on its own motion, or upon request of the City Attorney, the Board
shall issue subpoenas to compel the attendance of necessary witnesses.
L. At the next regular meeting, or within thirty (30) days, whichever is sooner, following receipt of
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the City Attorney's analysis, the Board shall review and consider the complaint and the City
Attorney's analysis, and, if a hearing is to be held, shall set a date certain for the hearing to take
place within thirty (30) days, unless the accused petitions for and the Board consents to a later
date.
M. As soon as practicable after giving due consideration to a complaint, or, if a hearing was held,
after the hearing, the Board shall take any action or combination of actions which it deems
appropriate and which it is lawfully empowered to take, including, but not limited to the
following:
(1) dismiss the complaint based on any of the following grounds:
(i) the complaint does not allege facts sufficient to constitute a violation of this
Chapter or a violation of Title 2, Chapter 2, Part 100 of Montana Code Annotated; or
(ii) the Board has no jurisdiction over the matter; or
(iii) failure of the complainant to cooperate in the Board's review and consideration
of the complaint; or
(iv) the complaint is defective in a manner which results in the Board being unable
to make any sound determination; and
(2) determine that no violation of this Chapter or a violation of Title 2, Chapter 2, Part
100 of Montana Code Annotated has occurred; or
(3) determine that the complaint alleges facts sufficient to constitute a violation of this
Chapter or a violation of Title 2, Chapter 2, Part 100 of Montana Code Annotated, and that the
Board will conduct a hearing, in which case the Board shall promptly send written notice of
such determination to the accused and to the party who made the complaint; or
(4) determine that further information must be obtained in order for the Board to
determine whether the complaint alleges facts sufficient to constitute a violation of the Chapter
or a violation of Title 2, Chapter 2, Part 100 of Montana Code Annotated; and
(i) conduct its own investigation with respect to any alleged violation; or
(ii) schedule the complaint for further review and consideration at a future time
certain, in which case the Board shall promptly send written notice of such determination to the
accused and to the party who made the complaint; or
(iii) refer the complaint to any appropriate authorities for criminal investigation; or
(iv) refer the complaint, if it appears to be substantiated, to the county attorney or
city attorney for prosecution; or
(v) refer the complaint, along with the Board's findings and conclusions, to any
appropriate administrative authority for disciplinary action or other suitable remedial action; the
Board, although it has no independent administrative authority, may make any recommendation
to any City administrator at any level of supervision, if the Board finds that the
recommendation will advance the objectives of this Chapter; whether to implement the
recommendation may be decided by whatever decision maker is authorized under the
circumstances; if it is determined that misconduct or malfeasance has occurred, the Board shall
refer the matter to the City Manager, City Attorney or to the governing body, as circumstances
warrant.
(5) After it has made its final determination, the Board shall issue its written findings of
fact and conclusions, and may issue any additional reports, opinions and recommendations as it
deems advisable under the circumstances. All such reports shall be in compliance with all state
and city laws governing confidentiality, open government, and torts. All such reports shall be
reviewed by the City Attorney prior to their issuance.
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2.01.180. Those Subject to Removal Only by the Governing Body.
If findings relative to an elected or appointed official are filed by the Board with the governing body,
the governing body may take action to remove the official in accordance with state law.
2.01.190. Ex Parte Communications.
A. After a complaint has been filed and during the pendency of a complaint before the Board, no
member of the Board may communicate directly or indirectly with any party or other person
about any issue of fact or law regarding the complaint, except that
(1) the members of the Board may obtain legal advice from the City Attorney (or retained
counsel) and may discuss the complaint with their staff; and
(2) the members of the Board may discuss the complaint at a lawfully conducted meeting.
B. If any person attempts to communicate with a Board member regarding the pending complaint, the
Board member shall report the substance of the communication to the Board on the public
record at the next regular meeting of the Board.
2.01.200. Confidentiality of Board Information.
No member of the Board nor any public servant who has access to any confidential information
related to the functions or activities of the Board shall divulge that information to any person who is not
authorized to have it. The identity of a person who requests a confidential advisory ethics opinion is
confidential, as is information describing or pertaining to any organization mentioned in the request for an
opinion if the disclosure of the information could lead to the disclosure of the identity of the person
requesting the confidential advisory opinion.
2.01.210. Waiver of Confidentiality.
A person who makes or purports to make public the substance of or any portion of an advisory
opinion requested by or on behalf of that person is deemed to have waived the confidentiality of the request
for an advisory opinion and of any records obtained or prepared by the Board in connection with the request
for an advisory opinion.
2.01.220. Statute of Limitations.
No action may be taken on any complaint which is filed later than six (6) months after a violation of
this Chapter is alleged to have occurred, and a complaint alleging a violation must be filed within six (6)
months from the date the complainant(s) knew or should have known of the action alleged to be a violation.”
Section 2
Repealer
All resolutions, ordinances and sections of the Bozeman Municipal Code and parts thereof in
conflict herewith are hereby repealed.
Section 3
Savings Provision
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This ordinance does not affect the rights and duties that matured, penalties that were incurred or
proceedings that were begun before the effective date of this ordinance.
Section 4
Severability
If any portion of this ordinance or the application thereof to any person or circumstances is held
invalid, such invalidity shall not affect other provisions of this ordinance which may be given effect without
the invalid provisions or application and, to this end, the provisions of this ordinance are declared to be
severable.
Section 5
Effective Date
This ordinance shall be in full force and effect thirty (30) days after final adoption.
PASSED by the City Commission of the City of Bozeman, Montana, on first reading at a regular
session thereof held on the ______ day of November, 2007.
PASSED, ADOPTED AND APPROVED by the City Commission of the City of Bozeman,
Montana, on second reading at a regular session thereof held on the _________ day of _____ 2007.
__________________________________________
JEFFREY K. KRAUSS, Mayor
ATTEST:
_____________________________________
STACY ULMEN
City Clerk
APPROVED AS TO FORM:
___________________________________
PAUL J. LUWE
City Attorney
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