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HomeMy WebLinkAbout04-25-12 Memo to BE re; conflict of interest revisionsMemorandum to the City of Bozeman Board of Ethics                     FROM:                       Aimee Kissel, Deputy City Clerk Greg Sullivan, City Attorney MEETING DATE: April 25, 2012 RE: Action on Recommendations to City Commission regarding Amendments to City Code of Ethics Section 2.03.520 Conflict of Interest RECOMMENDATION: Approve recommendations to the Bozeman City Commission to amend Bozeman Code of Ethics Section 2.03.520. MOTION: I move to adopt the amendments to Section 2.03520 related to conflicts of interest as shown in the memorandum; and recommend the Bozeman City Commission adopt an ordinance with the changes. BACKGROUND: 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. Over the past several meetings you have discussed options for addressing amendments to the City of Bozeman’s Code of Ethics, Conflict of Interest provisions. The following notes reflect board discussion on February 15th: Conflict of interest within second round of revisions? Commissioners concerned with conflict of interest and sole proprietor issue. Better suited for policy session? 1st agenda item – adoption of gifts, * second agenda item policy session about conflict and post employment 3rd agenda item – Ordinance on both Talk with Deputy Mayor Krauss about his views on post employment Ms. Frost – unless get different feedback from Krauss, would like to take revisions to conflict previously recommended and bring them back to the Commission again. If the board would like to put forward the same changes drafted in December of 2009 regarding the conflict of interest provisions, here is how the new section would read. Sec. 2.03.520. - Conflict of interest. A. No official or employee shall engage in any employment or business which conflicts with the proper discharge of his or her official duties. B. No official or employee shall take or influence official action if the official or employee hasve 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 having such a financial or personal interest shall not engage in deliberations concerning the matter, shall disqualify himself from acting on the matter, except in the event of a tie vote, and shall not communicate about such matter with any person who will participate in the action to be taken on such matter. B. If an official or employee has a ny tangible or intangible financial or personal interest in the outcome of any matter coming before the agency of which they are he is a member or by which they are he is employed, such official or employee shall publicly disclose on the record of the agency, or to their his superior or other appropriate authority, the existence of such financial or personal interest. A.C. Except as authorized pursuant to 2.03.520.H, aAn official or employee having such a financial or personal interest in a matter shall not engage in deliberations concerning the matter, shall disqualify himself from acting on the matter, except, in the event of a tie vote, and shall not communicate about such matter with any person who will participate in the action to be taken on such matter. B. 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. C.D. Except as authorized pursuant to 2.03.520.H, nNo 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 the 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, except in the event of a tie vote, and shall not communicate about such matter with any person who will participate in the action to be taken on such matter. D.E. Nothing in this section shall be interpreted or construed to prohibit any official or employee from exercising histheir own individual legal rights as to histheir 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 their own personal interest before an agency of which he/she 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 and must, fully disclose any conflict of interest prior to the agency taking action. F. This section does not absolve any official or employee from complying with Title 2, Chpt. 2, MCA. 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. G. A City Commissioner or Mayor, as authorized pursuant to Sect. 2-2-121(10), MCA, may take action on a conflict described in this section if that Commissioner’s or Mayor’s participation is necessary to obtain a quorum or to otherwise enable the Commission to act. If so, the Commissioner or Mayor shall disclose the interest creating the conflict prior to performing the official act. F.H. Any official or employee with a conflict of interest under this section shall, in addition to other requirements in this section and when required by law, comply fully with the disclosure requirements of Sect. 2-2-131, MCA, and shall file this disclosure with the Montana Commissioner of Political Practices prior to acting. ____________________________________________________________ _____________________ The following has been excerpted from the June, 2011 draft memo that was created to facilitate a discussion regarding this section with the Mayor and Deputy Mayor regarding proposed changes. The code references have been updated to reflect current BMC numbering. This section of the ordinance proposes to primarily reorganize 2.03.520 (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 2.03.520. 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 2.03.520 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 from 2011 on 2.03.520 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.