Loading...
HomeMy WebLinkAboutMemo to Commission 12 2 09 re Ord 1775/                   Commission Memorandum                         REPORT TO:           City of Bozeman Ethics Board                      FROM:                      Greg Sullivan, City Attorney Chris Kukulski, City Manager SUBJECT:              Provisional adoption of Ordinance 1775: An Ordinance of the City Commission of the City of Bozeman, Montana, Amending Chapter 2.01, BMC (Code of Ethics) to include provisions related to improper governmental action and others.     MEETING DATE: December 7, 2009 AGENDA ITEM TYPE: Action Agenda RECOMMENDATION:  We recommend you review the amendments proposed by staff and the Board of Ethics and, by motion and vote, provisionally adopt Ordinance 1775. BACKGROUND:    This past summer you requested a review and evaluation of existing protections afforded to those who report alleged violations of city policy or certain standards of conduct related to interactions with the public. Essentially, you asked for information regarding “whistleblowing.” On August 31, 2009, staff presented you with a detailed report on existing local, state and federal protections for those who report alleged improper conduct. At that time, you directed the City Attorney to draft amendments to the city’s Code of Ethics that would codify (i.e. put into the city’s municipal code) more express protections for whistleblowers. You were also interested in ensuring those who reported such conduct were not retaliated against. As such, City Attorney Sullivan drafted the attached ordinance. The “whistleblowing” protections are entitled “improper governmental action.” In addition, various provisions address “retaliation” type behavior. After a discussing the process this ordinance has been through to get to you today, we will explain the details of the proposed ordinance, section by section. Process: Per you direction, the City Attorney drafted amendments to Chapter 2.01 of the Bozeman Municipal Code and presented those amendments to the Board of Ethics on October 28, 2009. At that meeting, the Board considered the whistleblower and retaliation provisions and requested specific adjustments. In addition, the Board considered other provisions in the Code of Ethics that were potentially in need of review and possible amendment. The Board of Ethics again considered the whistleblowing and retaliation provisions as well as the other provisions they were concerned about on November 18th and voted to unanimously recommend you approve Ordinance 1775. As stated, the ordinance adopted by the Board of Ethics includes the other amendments prepared by City Attorney Sullivan. City employees and officials have also been given notice and an opportunity to participate in the development of this proposed ordinance. First, in early October, City Attorney Sullivan presented initial drafts to the directors and the city’s Tuesday morning management team for review and comment. Several of them provided written comments and those suggestions were incorporated into the initial draft as presented to the Board of Ethics. Second, on November 12th, with the assistance of the city’s IT department, documents related to this proposed ordinance were placed on the city’s external website. At that time, an email was sent to all employees and all officials (i.e. board members) notifying them of the proposed ordinance and directing them to the website. Employees and officials were invited to provide written comments to the City Clerk’s office, the Board of Ethics, or to you. They were also encouraged to attend the Board of Ethics meetings as well as this meeting. In addition, around the time we placed the documents on the external website, around November 9, 2009, City Attorney Sullivan directly emailed you drafts of these proposed changes. Documents related to this ordinance remain on the city’s homepage under “Whistleblowing Ordinance.” In addition, this memo and the version of the ordinance currently before you were placed on the website as of the afternoon of Wednesday, December 2, 2009. Proposed Amendments: As stated above, Ordinance 1775 contains numerous proposed amendments to Chapter 2.01, BMC. In addition to amendments defining and providing for “improper governmental action” and amendments addressing retaliation, you will find several substantive changes to the code’s standards of conduct, its provisions related to post-employment activities, and the conflict of interest provisions. These other proposed amendments will be discussed herein as the Board of Ethics acknowledged the need to revisit these provisions for clarity and to clear up conflict between state and local law. The sections of the ordinance that contain provisions related to whistleblowing and retaliation are sections: 1, 2, 3, 5, 6, 8, and 10. Sections of the proposed ordinance that contain provision identified by the Board of Ethics and staff and not directly related to whistleblowing and retaliation include sections: 4, 7, 8, 9 and 11. The following contains a description, for each section of the ordinance in numerical order, of the proposed changes to Chpt. 2.01 of the BMC: Section 1: This proposed amendment updates the table of contents for Chpt. 2.01 and recognizes the proposed addition of a new section related to procedures for reporting “improper governmental action.” Section 2: This section of the ordinance proposes to amend the “Declaration of Policy” of the Code of Ethics by incorporating language related to accountability and retaliation. The amendments speak for themselves. Section 3: This section of the ordinance provides one of the most critical substantive changes as it creates a definition for the term “improper governmental action.” The definition of this term contains the substance of what constitutes (and what does NOT) improper governmental action. Please pay particular attention to this amendment. Also, please consider this in conjunction with section 10 of the ordinance discussed below regarding reporting of improper governmental action. Section 4: This section of the proposed ordinance contains a minor amendment to 2.01.030, BMC. The substantive amendment here is to move the existing mandate that employees and officials verify their commitment to the Code of Ethics from its original location in 2.01.110 (Post-Employment Activities). The location for this phrase is clearly more appropriately located in 2.01.030. Section 5: This section of the proposed ordinance contains language that lies at the heart of the Commission’s direction this past summer. In doing so, this section of the ordinance amends 2.01.040, BMC, by adding a new “standard of conduct” that requires all officials and employees to refrain from improper governmental action. In addition, this section of the ordinance creates a new standard of conduct prohibiting retaliation against an employee or official when that employee or official proceeds with a claim in “good faith” under the Code of Ethics. Section 6: This section of the ordinance also contains critical language per the Commission’s direction; here, the language goes directly to how employees and officials treat the public. By amending 2.01.060, this section of the ordinance provides express statements regarding how the public should be treated with regards to retaliation: “All employees and officials shall, in the exercise of their official duties, refrain from taking any action, making of any statement, or authoring any document that is intended to harass, intimidate, or retaliate against any member of the public.” Section 7: This section of the ordinance contains amendments not specifically requested by the Commission but proposed by the Board of Ethics and recommend by City Attorney Sullivan. 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. Section 8: This section of the proposed ordinance has a few important amendments that were identified by the Board of Ethics and staff but not directly related to the Commission’s direction on whistleblowing and retaliation. These 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. Section 9: This section of the proposed ordinance was identified by the Board of Ethics and staff as important in order to clarify 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. Section 10: This section of the proposed ordinance is another section that gets to the gravamen of your direction from this past summer regarding whistleblowing and retaliation and as such should be read in conjunction with the creation of a definition for “improper governmental action.” (See sections 3 and 5 of the ordinance). Subsection (B) is the provision that establishes a right under the Code of Ethics for any person to report “improper governmental conduct:” Right. Every City employee, official, or member of the public shall have the right to report, in good faith and in accordance with this Chapter, to a City official, employee, another government official, or member of the Board of Ethics pursuant to the procedures of this Chapter, or to any member of the public, information concerning improper governmental action Subsection (C) of this section proposes to add specific limitations regarding the right established above. Of particular importance is the provision that requires an allegation of improper governmental conduct to be made “in good faith.” In addition, it is clear in the limitation subsection that reporting improper governmental conduct committed by one self does not grant that person immunity from further action under the Code of Ethics or discipline under the city’s personnel policies. Finally, this section lists specific instances of conduct related to the reporting of improper governmental conduct that are protected if carried out in good faith. This list is intended to be exhaustive; meaning, that if a type of conduct is NOT listed it may not be protected under this ordinance. Please note, however, the language is quite broad. Section 11: This final substantive section of the ordinance proposes to amend 2.01.130, BMC, to provide an alternative to an annual ethics workshop for employees and officials. This proposal was not specifically requested by the Commission but is being suggested by the Board of Ethics and staff to provide flexibility and alternatives in conducting the annual ethics training. In addition to the above proposals, the Board of Ethics and staff propose amending for gender neutrality those sections of Chpt. 2.01 that were substantively amended by this ordinance. As such, you will see throughout the ordinance numerous gender-neutral amendments. Finally, we wish to remind the Commission of two major points related to implementation of the standards provided in the Code of Ethics. First, the existing Code of Ethics has specific provisions that direct the process a person interested in filing a complaint with Board must follow. The substantive amendments included in this ordinance will also use this existing process. Second, City Manager Kukulski intends to develop an administrative order that will include, in the city’s personnel policies, express provisions related to retaliation and whistleblowing. These provisions have not yet been adopted because staff was interested in ensuring the provisions were compatible with the code changes the Commission adopts. Upon final adoption of this ordinance, changes to the personnel policies will be adopted by the City Manager. FISCAL EFFECTS: None foreseen at this time. ALTERNATIVES: As suggested by the City Commission. Attachments:  Ordinance 1775 (Version 12/2/09) Report compiled on: December 2, 2009.