HomeMy WebLinkAbout04-25-12 Agenda Items I and J memo and materialsMemorandum to the City of Bozeman Board of Ethics
FROM: Greg Sullivan, City Attorney
Aimee Kissel, Deputy City Clerk
MEETING DATE: April 25, 2012
RE: Agenda Items I and J: Discussion on the definition of “official”
and standards for persons covered; Formal Decision on
Determination whether the Community Climate Action Plan Working Groups are subject to the City Code of Ethics.
RECOMMENDATION: Discuss several issues related to the definition of “official” found
at 2.03.470.A.9 and the standards for persons covered at 2.03.480. After your discussion we
recommend you issue a formal opinion that members of the Community Climate Action Plan Working Groups are subject to the City Code of Ethics. If so, we recommend you direct us to draft a Resolution that would serve as the formal opinion of the Board of Ethics to be approved
by motion and vote at the next Board of Ethics meeting. We will immediately advise the staff
liaison to the working groups of your decision. We propose the working group members only be
required to obtain a copy of the Ethics Handbook and undergo the online ethics training.
BACKGROUND: Questions have arisen as to the scope of coverage of the Code of
Ethics; specifically, as the coverage is related to temporary or ad hoc groups of citizens
recommending policy to the City. We plan to discuss with you previous decisions of the City
Attorney regarding this issue and ask you render a formal decision whether members of the Community Climate Action Plan Working Groups (the “Working Groups”) are subject to the
Code of Ethics. We ask that you evaluate the definition of “official” found at 2.03.470.A.9 and
the standard for “persons covered” at 2.03.480, BMC.
2.03.470.A. Definitions. 9. "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.
2.03.480./Persons covered.
All city officials and employees shall be bound by this division. All officials, including
members of the parking commission and library board, and all employees shall be bound by this division. Upon initial employment and annually thereafter each employee, official and
member of every board or committee shall verify that such employee, official and board or
committee member has not and will not knowingly violate any provision of this division or
the rules, standards of conduct or rules of ethics established by state law.
The Working Groups were established via City Commission Resolution 4358 and are made up of
volunteers investigating and making recommendations to the City Commission and city staff on
a particular issue or subject. The Working Groups are temporary in nature and disband after the
initial investigation or task is accomplished. These Working Group members are not appointed
by the City Commission. They are selected by city staff liaisons based upon stakeholder interest
and expertise on the issue.
Please also see Sect. 3(11) of Resolution 4373 creating the Technical Advisory Committee for the City’s Integrated Water Resources Plan. This resolution clearly indicates the TAC is subject
to the Code of Ethics.
Also, please see the attached email written by City Attorney Greg Sullivan which may help
inform your discussion. The email provides Mr. Sullivan’s opinion that the Inter-Neighborhood Council members are not subject to the City’s Code of Ethics and explains the reasoning behind
this opinion.
We also ask you to consider whether; if Working Group members are subject to the Code of
Ethics accommodations should be made to the requirements for annual ethics training based on the temporary nature of working groups.
Attachments:
• Resolution 4358, Creating and defining the purpose and structure of Community Working Groups to assist with Implementation of the Climate Action Plan.
• Resolution No. 4373, Creating and defining the purpose and structure of a Technical
Advisory Committee convening for the City’s Integrated Water Resources Plan.
• Email from City Attorney Greg Sullivan determining that Inter-Neighborhood Council members are not subject to the City’s Code of Ethics.
Report by: Aimee Kissel and Greg Sullivan on April 23, 2012
COMMISSION RESOLUTION NO.4358
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA CREATING AND DEFINING THE PURPOSE AND STRUCTURE OF
COMMUNITY WORKING GROUPS TO ASSIST WITH IMPLEMENTATION OF THE
CLIMATE ACTION PLAN.
WHEREAS, on March 28, 2011 the Bozeman City Commission adopted the
Community Climate Action Plan:'; and
WHEREAS, Chapter 5 of the "Community Climate Action Plan" recommends the
creation of a permanent Conservation Advisory Board to monitor programs, develop
implementation strategies, and build coalitions and partnerships in the Community; and
WHEREAS, on November 7, 2011 the Bozeman City Commission determined that
community Working Groups should assist with implementation of the Climate Action Plan; and
WHEREAS, the creation of community Working Groups would not preclude the
establishment of a permanent Conservation Advisory Board, at a future date, if necessary; and
WHEREAS, it is in the best interest of the City to implement community Working
Groups.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN, MONTANA:
Section I
The purpose of the"Climate Action Plan Community Working Groups" is to focus on
accomplishing Commission identified Climate Action Plan priorities.
For the Fiscal Year 2012, these working groups are:
1. Bozeman Climate Outreach Working Group
2. Anti-Idling Education Working Group
3. Commercial Building Benchmarking Working Group
RESOLUTION NO.4358
Page 1 of 3
For the Fiscal Year 2013, these Working Groups will be established during the Commission goal
setting and annual budget processes.
Section 02
The Working Groups will be asked to:
I. Assist Staff with the implementation of identified priorities within the City's adopted
Climate Action Plans.
2. Advise Staffin developing recommendations to the City Commission on the issues,
policies, and best practices associated with the identified priority.
3. Work with the City and other groups or advisory boards to formulate programs and
projects to facilitate implementation of the identified priority.
Section 3
Structure and oversight of Working Groups shall be organized according to the following:
1. Working Groups
Working Group participation from the general public will be sought for a minimum of two
weeks prior to the first meeting. City Commissioners and staff will also invite Working
Group members to participate. At the first working group meeting, a membership list for the
group will be established. A minimum of five (5) working group members will be required
for each Working Group.
A Commission liaison will be required for each Working Group for consultation and
information, but Commissioners are not required to attend each meeting. The Climate
Protection.Coordinator or a designated Staff member will attend each meeting.
2. Community Chairperson
Each Working Group will appoint a Community Chairperson. The Community Chairperson
will meet with the Staff to establish Working Group deliverables, identify the necessary
stakeholders and corresponding representatives, and agree upon a Working Group timeline to
accomplish the objective, and establish a Working Group meeting schedule.
3. Working Group Procedures
Meetings will occur at regular times to encourage public participation and changes will be
published at least 48 hours in advance. Agendas will be prepared and meetings facilitated by
the Chairperson or Climate Protection Coordinator. Each Working Group will have a
Chairperson and Recording Secretary. Attendance and a summary of decisions will be made
available to the public.
RESOLUTION NO.4358
Page 2 of 3
For purposes nf coriducting working group meetings, a quorum shall consist nf three (3)
community members. Decisions will be made by consensus nfall present Working Group
members, whenever possible.
Working Groups are temporary and should not continue for y period n{more than one (l)
year unless the Clirtiate Protection Coordinator and Community Chairperson determine that
additional time is need to achieve the stated deliverables. Working Group ouemhocs may
participate io more than one (}) Working Group.
5. Reporting and Public Participation
luudditinu to the advertised Working Group meetings, social media and the Cityvvohmi1e will
assist with ongoing public communication. The Climate Protection Coordinator will prepare
biannual Climate Action Plan progress reports for the Commission and Planning Board. The
City will host an annual public workshop where Staff and Working Group members will
present progress reports, discuss challenges, and seek broad public input.
PASSED AND ADOPTED bythe City Commission ofthe City of Bozeman, Montana atu
regular session thereof held nu the 2lxt day *f November 30l|.
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APPROVED A8TOFORM:
G SULLIVAN
City Attorney
RESOLUTION NO.4358
Page 3uf3
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COMMISSION RESOLUTION NO,4373
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOZEMAN,
MONTANA, CREATING AND DEFINING THE PURPOSE AND STRUCTURE OF A
TECHNICAL ADVISORY COMMITTEE CONVENING FOR THE CITY'S INTEGRATED
WATER RESOURCES PLAN.
WHEREAS, the purpose of the Integrated Water Resources Plan is to explore, evaluate,
prioritize, and document the range of alternatives available to address anticipated water supply
challenges for the City of Bozeman; and
WHEREAS, on February 6, 2012 the Bozeman City Commission authorized the City
Manager to sign a Professional Services Agreement (PSA) with the firm of Advanced
Engineering and Environmental Services Inc (AE2S) to complete an Integrated Water Resources
Plan (IWRP) for the City of Bozeman; and
WHEREAS, Task 9 of the IWRP PSA scope of services provides that three Technical
Advisory Committee(TAC)meetings will be completed, however, additional TAC meetings
may be held if directed or approved by the Bozeman City Commission; and
WHEREAS, on February 6, 2012 the Bozeman City Commission directed interested
individuals with a technical background or understanding of water supply planning and water
rights to apply for TAC positions; and
WHEREAS, the Bozeman City Commission shall appoint members to the IWRP TAC
from applicants that have applied for the IWRP TAC.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF BOZEMAN,MONTANA:
Section I
The Technical Advisory Committee (TAC) of the Integrated Water Resources Plan (IWRP) will
assist in reviewing and preparing plan components described in Section 2 of this Commission
RESOLUTION NO.4373
Page 1 of
Resolution. The professional experience and technical background of TAC members will
provide a means of broadening the basis of scrutiny and collective knowledge utilized in review
and preparation of the IWRP beyond City Staff and its professional contractors.
Section 2
The TAC will be asked to assist City Staff and its professional contractors in:
1. Water conservation planning.
2. Selecting and weighting alternatives ranking criteria.
3. Developing water supply alternatives.
4. Reviewing modeling efforts, cost estimates and plan results.
Section 3
The structure and oversight of the TAC shall be organized according to the following:
1. The Bozeman City Commission shall appoint members to the TAC from individuals
with a technical background or understanding of water supply planning and water
rights. TAC is considered temporary in nature. If the Committee is still constituted
two years after the date of this Resolution, members will need to be reappointed to the
Committee by the City Commission. Vacancies shall be filled in the same matter as
original appointments.
2. A Commission liaison is required for the TAC for consultation and information, but
the liaison is not required to attend each meeting. At least one Staff member shall
attend each TAC meeting.
3. The TAC, at its first scheduled meeting, will elect from amongst its appointed
membership a committee Chairperson.
4. Three TAC meetings will be held unless additional meetings are directed and/or
approved by the Bozeman City Commission.
5. TAC schedules and agendas shall be prepared by Staff and AE2S with input provided
by the committee Chairperson. Agendas will then be provided to the City Clerk for
public display at Ieast 72 hours prior to the meeting. Materials for TAC review and
deliberation shall be provided by AE2S.
6. TAC minutes will be recorded by AE2S and will be made available to the public.
7. The TAG may, at its discretion, forward an independent formal recommendation to
the Bozeman City Commission regarding its work and deliberations on the IWRP.
8. TAC meetings will be open to the public and conducted in accordance with all
applicable rules and regulations of the State and the City of Bozeman.
9. The actions of the board shall be advisory only and shall not constitute policy of the
City and shall not be binding upon the City Commission or upon the City.
10. Meetings shall be conducted according to Robert's Rules of Order, Eleventh Edition
and the model Advisory Board Rules of Procedure.
11. Compliance with the City Code of Ethics. All members are required to follow State
ethics laws regarding appointed officials and the city of Bozeman Code of Ethics.
Members will receive the City of Bozeman ethics handbook and must sign a form
RESOLUTION NO.4373
Page 2 of 3
acknowledging receipt of the handbook and take a written oath they will uphold the
state and city ethics codes. Members are also required to take an online or paper
ethics training shortly after appointment. Non-compliance with the City Code of
Ethics and training requirements may result in removal of a Committee member.
PASSED AND APPROVED by the City Commission of the City of Bozeman, Montana, at a
regular session held on the 9th day of April, 2012.
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APPROVED A TO FORM:
G SULLIVAN
City Attorney
RESOLUTION NO. 4373
Page 3 of 3
From:Greg Sullivan
To:Allyson Bristor; Aimee Kissel
Cc:Brit Fontenot; Stacy Ulmen; Chris Kukulski; Susan Wordal
Subject:RE: Neighborhood Recognition Ordinance (1728)
Date:Wednesday, September 22, 2010 5:06:52 PM
All:
I was going to give a lengthy technical legal analysis of this issue (and would actually like to) but in
the spirit of getting all my work done I don’t issue lengthy legal opinions; as such, I’m going to issue
my opinion in as succinct a manner as possible.
The answer is as Brit puts it: neither individual members of the neighborhood associations, elected
delegates, or delegates elected as officers of the INC are subject to the city’s Code of Ethics. The
Charter, the enabling ordinance, and the bylaws are silent on this specific question. But, when
taken together, the documents mentioned above do speak to the independent nature of the
neighborhood associations/INC from the city government.
Of particular note to this determination is the definition of “official” in the Code of Ethics:
“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.” Furthermore, pursuant to the enabling ordinance, “recognized neighborhood
associations are autonomous organizations. Although the City may provide limited forms of
financial aid to officially recognized neighborhood associations, recognized neighborhood
associations are not considered agencies of the City.” As a result, by definition, a neighborhood
association is not a city agency and “officials” under the Code of Ethics can only by from a “city
agenc[y].”
As to delegates from a neighborhood elected or appointed to the INC, I agree with Brit: because
delegate vacancies can only be filled by the respective neighborhood association (2.82.120.B.1) the
INC is independent from the City Commission. Although the enabling ordinance states, “The INC is
an advisory board to the city commission” (2.82.120.A), I believe the independent nature of the
INC warrants the same determination that the INC is not a city agency. As such, its members are
not subject to the code of ethics under the same analysis as above.
As for elected officers of the INC, my opinion is the same.
I believe this is the only entity affiliated with the city that is not subject to the Code of Ethics. If
there are others please let me know. Certainly, members of the TCC, and others who are similarly
situated, who are not appointed by the City are not subject to the Code of Ethics.
While the neighborhood members, the delegates, and the officers of the INC are not technically
subject to the Code of Ethics, I strongly urge all involved in the neighborhood program to obtain
the Ethics Handbook, learn about the city’s ethics program, and to strive in their duties to abide by
concepts and standards listed in the Code of Ethics. I also think it would be a great idea to continue
to invite them all to our formal ethics trainings.
From: Brit Fontenot Sent: Wednesday, September 22, 2010 3:48 PMTo: Greg Sullivan; Allyson Bristor (ABristor@BOZEMAN.NET); Aimee Kissel; Stacy UlmenSubject: Neighborhood Recognition Ordinance (1728)
Dear all,
I can’t seem to find the word version of the final NRO but I will continue to search. Attached is the
.pdf.
For the following reasons I would argue that the INC is not subject to the ethics-related trainings
and agreements as other members of appointed boards (although their participation and
adherence to the standards in the handbook should be strongly encouraged and supported):
1) INC delegates are self selecting, not appointed by the City Commission;
2) The INC has no fiduciary responsibility or authority;
3) Neighborhood Associations may choose to be a) representative or b) informational and
therefore not all INC delegated have decision making authority on behalf of their entire
neighborhood;
4) Delegates to the INC may not be elected officers of the Neighborhood Association and
stand-ins sometimes attend INC meetings on behalf of another delegate from the
neighborhood (one doesn’t always know who will show up to represent the neighborhood
at the INC meeting); and
5) The INC has a Commission Liaison but the liaison is not a member of the Council and does
not vote on issues brought before the INC.
The INC has been invited to attend the ethics training offered earlier in the year and I know some
did attend. Additionally, I handed out the ethics handbook to the INC delegates earlier in the year.
b
City of Bozeman
Bozeman City Hall - 121 North Rouse Avenue - P.O. Box 1230 - Bozeman, MT 59771
406-582-2258
www.bozeman.net