HomeMy WebLinkAbout04-25-12 Memo to BE re gifts and noncompliance with training, revised ak
Memorandum to the City of Bozeman Board of Ethics
FROM: Greg Sullivan, City Attorney
Aimee Kissel, Deputy City Clerk
MEETING DATE: April
25, 2012
RE: Action on Recommendations to City Commission Regarding Amendments to City Code of Ethics Sections 2.03.540 (amending gift provisions) and 2.03.600 (authorizing removal
of official for non-attendance at ethics trainings).
RECOMMENDATION: Approve recommendations to the Bozeman City Commission to amend Bozeman Code of Ethics Sections 2.03.540 and 2.03.600.
MOTION:
I move to adopt the amendments to Sections 2.03.540 related to gifts and Section 2.03.600 related to City Commission oversight of an officials attendance at ethics training as shown
in this memorandum; and recommend the Bozeman City Commission adopt an ordinance with the changes.
BACKGROUND: This memorandum addresses two of your action items on April 25: the discussion
on gift provision (agenda item F) and the discussion on the ramification for failure to obtain the annual ethics training (agenda item G).
Pursuant to Sect. 2.03.600.A.4.b, the Board
of Ethics may “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.” Upon your adoption we will forward your recommendations to the City Commission in the form of an ordinance on the next available Commission agenda.
I.
Amendments to the Code of Ethics’ Gift Provisions.
Over the past several meetings you have discussed several options for addressing the gift provision in the City of Bozeman’s Code
of Ethics (Chpt. 3, Art. 3, BMC). At your February 15th meeting I provided you a staff report (attached) that addressed numerous options for revising the gift provision in the Code of
Ethics.
Based upon your discussion on February 15th, I provide the following for your consideration and adoption as a recommendation to the City Commission:
Sec. 2.03.540. - Gifts, gratuities and favors.
A. No official or employee shall accept a gift, gratuity, or favor from any person or entity that:, except as authorized by law.
1.
Would tend improperly to influence a reasonable person in the person's position to depart from the faithful and impartial discharge of the person's public duties; or
2. The person
knows or that a reasonable person in that position should know under the circumstances is primarily for the purpose of rewarding the person for official action taken.
B. An employee
or official may not accept a gift, gratuity, or favor that complies with 2.03.540.A if the gift, gratuity, or favor has a value of $50 or more for an individual.
C. An employee or
official may accept a gift, gratuity, or favor that complies with 2.03.540.A if the gift, gratuity or favor has a value greater than $15 but less than $50 for an individual only if the
gift, gratuity, or favor is:
1. Provided incidental to and in conjunction with a public event where the official or employee’s attendance is in fulfillment of their official duties;
or
2. Constitutes an award publically presented to an employee or official in recognition of public service.
D. Upon the acceptance of a gift, gratuity, favor or award pursuant
to 2.03.540.C the recipient shall file a disclosure statement with the Board of Ethics. Such disclosure statement shall indicate the gift, it’s estimated value, the person or entity
making the gift, and the date of the gift. The disclosure statement is a public record.
The highlighted sections address your discussion on the dollar thresholds.
Subsection A creates
the general rule that a gift cannot be accepted if the gift violated either A.1 or A.2. The language from A.1 and A.2 is pulled directly from state law at 2-2-104(1)(b) (see code at
attached 2/15/12 memo).
Subsection B makes it clear that even if a gift complies with subsection A it may not be accepted if its value is greater than $50. Of course, you may alter
this dollar threshold.
Subsection C addresses the two main exceptions you discussed at your February meeting: (i) ensuring an official has the capacity to carry out their duties; and
(ii) ensuring that employees that deserve recognition are not prohibited from accepting a personal item for that service. What is NOT expressly mentioned but is clearly authorized by
implication is that a gift with a value of $15.00 or less can be accepted without facts that make it fit into the categories listed in Subsection C.
The result of the proposed changes
is that under no circumstances can a gift be accepted if it violates the standards of subsections A.1 and A.2. Next, even if the gift complies with A.1 and
A.2 it cannot be accepted if it exceeds the dollar value established in subsection B. Subsection C then sets a relatively tight standard for gifts between $15 and $50. Gifts under $15
can be accepted as long as the gift doesn’t run afoul of A.1 and A.2.
You also discussed the possibility of a disclosure requirement. I added language into subsection D. This subsection
requires disclosure for gifts that fall within the dollar limit and exceptions in subsection C. This section also makes it clear the disclosure is a public record.
Please note we are
researching the year the $50 limit was put into Montana state law and will have more on this for your meeting on Wednesday.
II. Amendments to the Code of Ethics’ provisions on annual
trainings for officials.
You also discussed this item previously at the February 15th meeting.
The citizen approved Bozeman City Charter adopted in 2008 states within Section 7.01(b)
‘The city commission shall appropriate sufficient funds to the city manager to provide annual training and education of city officials, city boards, and employees regarding the state
and city ethics codes. City officials, board members, and employees shall take an oath to uphold the state and city ethics codes.’ (Emphasis added).
Ordinance No. 1759 passed in 2009
further clarified the meaning of this mandate. This is contained within section 2.01.130, BMC, Duties and Powers of the Board, A.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.”
The City is now finishing up the third round of annual ethics trainings as required. Questions have been raised as to the appropriate consequences and procedures
to be taken if a board or committee member (official) does not attend the annual training. In the past, the city clerk has informed Commissioners at the time of re-appointment if a board
member has failed to take the training. Since terms usually extend two to four years, this practice is not timely and does little to ensure compliance with the requirement.
During
the February 15, 2012 Board of Ethics meeting, Deputy City Clerk Aimee Kissel asked the board for advice regarding Advisory Board model Rules of Procedure related to consequences for
non-compliance with the ethics training requirement. During that meeting, board members said they would rather see consequences written directly into the code of ethics with a reference
in the Model Rules of Procedure. Board of Ethics members directed staff to draft an addition to the Code of Ethics. Board of Ethics members also confirmed they would like new board and
committee members to take the brief online ethics training and then also attend the more in-depth yearly training being offered that year. Re-occurring board members, having
already taken the online training at first appointment would just be subject to the in-depth yearly training.
We suggest the following amendments to the Code of Ethics to address the
authority of the City Commission for an official’s failure to attend the required training:
2.03.600. – Duties and powers of the board.
A.
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.;
a. aAttendance 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 City Clerk shall forward to the Commission annually a list of officials who fail to take the training required under this section and the
Charter. The Commission may remove an official for failing to take the required training.
Board of Ethics members also discussed what alternatives board and committee members may
have if extenuating circumstances prevented their attendance at one of the annual ethics trainings. Board of ethics members advised that in these cases, board members would be allowed
to take the online training a second time to fulfill this requirement as long as the member was not habitually missing training.
We recommend the Board of Ethics consider whether another
alternative to taking the online training a second time may be appropriate for those who did not attend training due to extenuating circumstances. For example, an alternative that may
be offered in the future may be watching a video recording of the training or writing essay type answers to several provided case studies. The Board of Ethics and staff could then consider
alternatives on an annual basis, allowing for flexibility as the ethics program continues.
Attachments:
Feb 15th Memo to Board of Ethics from Greg Sullivan
Report by: Greg Sullivan
and Aimee Kissel on April 23, 2012