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HomeMy WebLinkAbout12-12 memo to BoE re; conflict of interest revisions, Sections 7, 8 and 9Memorandum to the City of Bozeman Board of Ethics FROM: Aimee Brunckhorst, Deputy City Clerk MEETING DATE: December 19, 2012 RE: Review possible revisions to the Conflict of Interest provisions in the Code of Ethics BACKGROUND: During the November 14, 2012 Board of Ethics meeting members discussed strategy for handling revisions to the Conflict of Interest and Post-Employment provisions. Members requested that materials provided to the Commission from the BoE at the December 7, 2009 Commission meeting be simplified and only include those sections that still need revisions. Following these directions I have only provided the portion of Greg’s Commission memo that explains the proposed amendments under consideration now and the portion of the Ordinance for sections 7, 8 and 9. These were the sections that the City Commission did not approve within Ordinance 1775. Excerpt from Staff memo from Greg Sullivan to the Commission on Dec. 7, 2009 for Provisional Adoption of Ordinance 1775. 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. Note from Aimee: I only included explanation of sections 7, 8 and 9 as those are the sections the Commission did not approve the proposed changes. 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 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. -- Excerpts of: ORDINANCE NO. 1775 Adopted by Board of Ethics 11/18/09 Version 12/2/09: For City Commission Provisional Adoption   AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF BOZEMAN, MONTANA, AMENDING CHAPTER 2.01 OF THE BOZEMAN MUNICIPAL CODE (BMC) BY AMENDING THE TABLE OF CONTENTS OF CHAPTER 2.01 OF THE BMC TO INCLUDE A NEW SECTION ON REPORTING OF IMPROPER GOVERNMENTAL ACTION; AMENDING SECTION 2.01.010 TO ADD ACCOUNTABILITY AND RETALIATION TO THE STATEMENT OF PURPOSE; AMENDING SECTION 2.01.020 TO ADD A DEFINITION OF IMPROPER GOVERNMENTAL ACTION; AMENDING SECTION 2.01.030 TO CLARIFY REQUIREMENTS FOR COVERED PERSONS; AMENDING 2.01.040 TO ADD ADDITIONAL STANDARDS OF CONDUCT; AMENDING SECTION 2.01.060 TO ADD PROVISIONS ADDRESSING TREATMENT OF THE PUBLIC; AMENDING SECTION 2.01.070 CLARIFYING STANDARDS FOR CONFLICTS OF INTEREST; AMENDING SECTION 2.01.110 CLARIFYING PROVISIONS RELATED TO POST EMPLOYMENT ACTIVITIES; AMENDING SECTION 2.01.111 REGARDING DISCLOSURE OF POST-EMPLOYMENT ACTIVITIES; AMENDING SECTION 2.01.120 TO ADD PROVISIONS RELATED TO IMPROPER GOVERNMENTAL CONDUCT INCLUDING REPORTING AND LIMITATIONS; AMENDING SECTION 2.01.130 TO ALLOW ALTERNATIVE TO YEARLY ETHICS WORKSHOPS; RENUMBERING NUMEROUS SECTIONS; INCLUDING AN EFFECTIVE DATE; AND A CODIFICATION INSTRUCTION. Section 7   That Section 2.01.070 of the Bozeman Municipal Code shall be amended as follows: No official or employee shall engage in any employment or business which conflicts with the proper discharge of his or her official duties. 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. 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 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. Except as authorized pursuant to 2.01.070.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. 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. Except as authorized pursuant to 2.01.070.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. 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. 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. 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. 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. Section 8 That Section 2.01.110 of the Bozeman Municipal Code shall be amended to read: 2.01.110. Post Employment Activities. No former public servant: during the 12 months following the date on which the public servant ceases service to the City of Bozeman, may, without complying with the provisions of 2.01.111, 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; may, for compensation, without complying with the provisions of 2.01.111 within 12 months after termination of public service 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; or shall use or continue to use any former official City title, including use on business cards or stationery, 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. Upon initial employment and annually thereafter each employee, public official and member of any board or committee shall verify he/she has not and will not knowingly violate any provision of this ordinance or the rules, standards of conduct or rules of ethics established by state law. The provisions of this Section do not absolve a public servant, official or employee from complying with the prohibitions against contracting in Sect. 2-2-105(3), MCA, or the prohibitions against obtaining employment in Sect. 2-2-201, MCA. If any provision of this section is in conflict with Title 2, Chpt. 2, MCA the more stringent provision shall apply. Section 9   That Section 2.01.111 of the Bozeman Municipal Code shall be amended as follows: 2.01.111. (Public Notice Required for Former Public Servants/Compliance with State Law). During the first 12 months following the date on which the former public servant ceases service to the City of Bozeman, any former public servant intending to make any formal or informal appearance before, or negotiate with, any decision maker, regarding any act prohibited under 2.01.110.A.1 and 2, shall, not less than ten (10) business days prior to the appearance, file with the Clerk of the City Commission and with the office of the City Attorney a public notice of the former public servant’s desire to negotiate, or appear informally or formally before a decision maker. Such written disclosure shall state in substance the purpose for which the former public servant wishes to appear or negotiate with the decision maker, the reason for such appearance or negotiation and a disclosure of all offices or employment held by the former public servant during the last 12 months of service to the City of Bozeman. The Clerk shall post the disclosure in a prominent location on the City’s website and other appropriate locations. Unless prohibited by Title 2, Chpt. 2, MCA, upon filing such written disclosure, the former public servant is not prohibited from the post employment activities proscribed in 2.01.110 A. 1 & 2. If a former public servant cannot reasonably meet the ten (10) day notice period described above, 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, below. If during the first 12 months following the date on which the former public servant ceases service to the City of Bozeman a former public servant wishing to appear before the City Commission or any other city board or agency at a properly noticed public meeting the former public servant shall at the onset of the appearance place upon the record the reason for such appearance and a disclosure of all offices or employment held by the former public servant during the last 12 months of service to the City of Bozeman. Nothing herein shall be construed as to absolve any former public servant of their duty to comply 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 shall apply.