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HomeMy WebLinkAbout2008 City Attorney Ethics Opinions MEMORANDUM TO: Chairperson,Bozeman Board of Ethics C/O Stacy Ulman, Bozeman City Clerk FROM: Paul J. Luwe,Bozeman City Attorney DATE: July 29,2008 RE: 2008 City Attorney Ethic Opinions Bozeman Municipal Code §2.01.160A,requires that when a City Attorney renders an opinion, the City Attorney submit a written summary of the opinions to the Ethics Board for the Board's information. Therefore, in accordance with the foregoing Bozeman Municipal Code provisions, the following City Attorney Ethics Opinions were issued from January 1, 2008 to August 1, 2008: FORMAL ETHICS OPINION 08-001(issued May 21,2008): Did Commissioner Eric Bryson have a conflict of interest that precluded him from taking official action on the conditional use permit submitted by Alcohol and Drug Services of Gallatin County(ADSGC)for the halfway house to be located at 119 South Church? HELD: Commissioner Bryson did not have a conflict of interest that precluded him from participating and voting on the conditional use permit submitted by ADSGC for the halfway house. FORMAL ETHICS OPINION 08-002 (issued May 26,20M. Did the special invitation from Ted's Montana Grill for special VIP dinner constitute a prohibitive gift? HELD: The acceptance of a complimentary dinner provided to the recipient because of his or her position does constitute a prohibitive gift. If the recipient pays fair market value for the dinner,then there would be no violation. FORMAL ETHICS OPINION 08-003 (issued June 9,2008): Did Commissioner Jeff Rupp have a conflict of interest that precluded him from participating in deliberations concerning Streamline that was being considered by the City Commission on June 9,2008? And, if he did have a conflict of interest, could he participate as a citizen of Bozeman rather than as a City Commissioner? HELD: Commissioner Rupp did have a conflict of interest that precluded him from participating as a City Commissioner on Streamline. Further held, that he could testify as a citizen if he disclosed his conflict of interest. I have enclosed a copy of the formal opinions. If you have any questions,please feel free to give me a call. I can be contacted at pjljaaQaol.com or by calling 570-8983 cc: (without enclosures) Chris Kukalski, City Manager Tim Cooper,Assistant City Attorney Kaaren Jacobson, Mayor City Commission Formal Ethics Opinion 08-003 TO: Commissioner Jeff Rupp DATE: June 9, 2008 RE: Conflict of Interest-Streamline QUESTIONS Do you have a conflict of interest that precludes you from participating in the deliberations concerning Streamline this Monday's agenda? If you do have a conflict of interest,can you participate as citizen? ANSWERS You do have a conflict of interest that precludes you from participating as a City Commissioner on Streamline. However, you can testify as a citizen if you disclose your conflict of interest. DISCUSSION On Monday June 9"',the agenda lists a"Special Presentation—State of the Public Transit Address/Update on the Streamline Bus System (Lisa Ballard, Streamline Coordinator, and David Kack, Chairman of the GALAVAN/Streamline Advisory Board)." In addition to this meeting,there will likely be follow-up meetings involving Streamline. However, this Monday's meeting is only a special presentation and no specific official action is expected. You are the Chief Executive Officer for Human Resource Development Council (HRDC)for Southwest Montana located in Bozeman and under the HRDC allocation plan,the Streamline initiative is charged 10%to pay your salary. You believe you may have a conflict of interest due to your position as CEO of HRDC. However,you would like to answer questions in your personal capacity should questions arise about HRDC and Streamline,and believe you have the right to exercise your rights as a citizen. The I977 Legislature enacted a set of standards governing the conduct of all public officials. MCA § 2-2-101 to -132. These statutes "set forth a code of ethics prohibiting conflict between public duty and private interest as required by the constitution of Montana.... [and recognize] that some actions are conflicts per se between public duty and private interest while other actions may or may not pose such conflicts depending upon the surrounding circumstances."MCA § 2-2-101. Thus, "it is necessary to look at each particular transaction or relationship in conjunction with the surrounding circumstances." See 37 Mont. Att'y Gen. Op. 104 (1993)and City Attorney Formal Opinion 08-001 (2008). The Bozeman Municipal Code (BMC)is generally more restrictive than state statute.See City Attorney Formal Opinion 08-002 (2008). You are correct that you have a conflict of interest that precludes you from taking official action. The conflict is prohibited by MCA §§ 2-2-105,2-2-121(5),and BMC 2.01.040G, t and 2.01.070.See also Mont. Att'y Gen. Letter of Advice to Ms. Linda McCulloch, Superintendent of Public Instruction, dated 28 October 2003. This letter of advice opined that an OPI office employee's position on board of directors of a non-profit corporation fall within the definition of private interest and there could be a conflict of interest as OPI administered grant funds that flowed to the non-profit organization. This letter of advice relied upon 38 Mont. Gen Att'y Op. 190 (1979) opined that a County Commissioner breached a fiduciary duty under MCA § 2-2-125(2)(b) by acting officially to award county contracts to an organization he sat on as a voting member of the board. The pertinent part of these provisions read: MCA § 2-2-105. Ethical requirements for public officers and public employees. (2) Except as provided in subsection (4), a public officer or public employee may not acquire an interest in any business or undertakiny, that the officer or employee has reason to believe maybe directly and substantially affected to its economic benefit by official action to be taken by the officer's or employee's agency. (4) When a public employee who is a member of a quasi-judicial board or commission or of a board, commission, or committee with rulemaking authority is required to take official action on a matter as to which the public employee has a conflict created by a personal or private interest that would directly give rise to an appearance of impropriety as to the public employec's influence, benefit, or detriment in regard to the matter, the public employee shall disclose the interest creating the conflict prior to participating in the official action. MCA § 2-2-121. Rules of conduct for public officers and public employees. (5) A public officer or public employee may not participate in a proceeding when an organization. other than an organization or association of local government officials, of which the public officer or public employee is an officer or director is: (a) involved in a proceeding before the employing agency that is within the scope of the public officer's or public employee's job duties; or (b) attempting to influence a local, state, or federal proceeding in which the public officer or public employee represents the state or local government. Official action under MCA§2-2-105 is defined as"vote,decision,recommendation,approval. disapproval,or other action,including inaction,that involves the use of discretionary authority. 2 BMC § 2.01.040 Standards of Conduct G. No official shall act in a private capacity on matters acted upon as an official. SYIC § 2.01.070 Conflict of Interest A. No official or employee shall engage in any employment or business which conflicts with the proper discharge of his official duties. B. No official or employee shall have 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. and shall not communicate about such matter with any person who will participate in the action to be taken on such matter. C. 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. D. No 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 Citv Commission, or take any appellate proceedings from any action of such agency or the Commission. Such representation may be made by an 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, and shall not communicate about such matter with any person who will participate in the action to be taken on such matter. 3 E. Nothing in this section shall be interpreted or construed to prohibit any official or employee from exercising his legal rights as to his own personal interests in a matter pending before the City or iany 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 own personal interest before an agency of which he 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. Emphasis added. State Statute allows participation if the proper disclosure is made. MCA § 2-2-131. See also 40 Mont.Att'y Gen Op. 28 (1983) MCA § 2-2-13 1 reads: MCA § 2-2-131. Disclosure. A public officer or public employee shall, prior to acting in amanner that may impinge on public duty. including the award of a permit, contract, or license. disclose the nature of the private interest that creates the conflict. The public officer or public employee shall make the disclosure in writing to the commissioner of political practices, listing the amount of private interest. if any, the purpose and duration of the person's services rendered, if any, and the compensation received for the services or other information that is necessary to describe the interest. If the public officer or public employee then performs the official act involved. the officer or employee shall state for the record the fact and summary nature of the interest disclosed at the time of performing the act. Emphasis added. However, the Bozeman Municipal Code is more restrictive than the state statute where unlike state statute disclosure is required but participation is prohibited. MCA § 2.01.070B & G.These two subsections provide that the official "shall not engage in deliberations concerning the matter, shall disqualify himself from acting on the matter, and shall not communicate about such matter with any person who will participate in the action to be taken on such matter. " MCA § 2.01.070E attempts to balance this prohibition with limited rights of testifying before the Commission. This subsection provides that"[N]othing in this section shall be interpreted or construed to prohibit any official or employee from exercising his legal rights as to his own personal interests2 in a matter pending before the City or any of its agencies,or to prohibit an ' BMC §2.01.020 makes a distinction between financial interest and personal interest. In this situation,you have a financial interest. The pertinent definitions read: "E."Financial interest"means any ownership interest,contractual relationship,business relationship,or other interest which will result in a monetary or other material benefit to an official or employee,either tangibly or intangibly, which has a value of more than fifteen dollars,other than his or her duly authorized salary or compensation for his services to the city,and which interest is not common to the interest of all other citizens of the city. The following financial interest shall be imputed to be those of an official or an employee of the city:that of a spouse or child of an official or employee;that of any prime contractor or subcontractor of the city, in which the official or employee or any member of his or her 4 official or employee from testifying as a witness in any administrative or judicial proceeding. However, no official or employee who represents his own personal interest ... shall participate in the decision of that agency or the appellate agency." You have indicated that you are not going to participate in the discussion or in any deliberations at the Commission table. You are also plaiming to remove yourself from the Commission table and sit in the audience. hi addition, I recommend you disclose your conflict prior to sitting in the audience and limit yourself to testifying before the Commission as a citizen. Although not required,I recommend that you not testify unless the Commission has a particular question of you to avoid the appearance you are participating in the discussion from the floor rather than the Commission table. Pursuant to BMC y 2.01.160C,you may rely upon this formal opinion and if you act in good faith in accordance with the provisions and findings of this opinion you will not be subject to prosecution under the Bozeman Municipal Code. However, I am unable to provide you immunity from prosecution under state law. I hope you found this helpful. If you have any questions about this matter,please contact me. RWiulwe btnittteedp Bozeman City Attorney immediate family has any direct or indirect interest as the proprietor,by ownership of stock or partnership interest. H."Personal interest"means any interest in the matter which would affect the action of the official or employee other than a financial interest,and other than an interest because of membership in,or affiliation with,but not employment by a social,fraternal,charitable,service,educational,religious,governmental, health service,philanthropic,cultural,or similar nonprofit institution or organization. (emphasis added). 5 Formal Ethics Opinion 08-002 TO: Chris Kukulski, City Manager DATE: May 26, 2008 RE: Ted's Montana Grill Initiation QUESTION Does the special invitation from Ted's Montana Grill for the special VIP dinner constitute a prohibited gift? ANSWER The acceptance of a complimentary dinner provided to the recipient because of his or her official position does constitute a prohibited gift. If the recipient pays full market value for the dinner, then there would be no violation. DISCUSSION You requested my opinion on whether the special invitation for complimentary dinner sent to several City employees and City officials constitute a prohibited gift under either state statute or the Bozeman Municipal Code. Ted's Montana Grill sent out invitations to several City employees and City officials to attend dinner at its establishment. The invitation has the invitee's name on the top of the invitation. Ted Turner and George McKerrow, Jr. invite the person to join them for their"special VIP dinner"to celebrate their first restaurant in Montana. The stated purpose of the dinner is to allow for a sneak preview and complimentary dinner for two at the new restaurant opening in Bozeman, and to assist the Grill in training prior to the opening to the public. The Grill is donating beverage proceeds to the Greater Yellowstone Coalition, the Sunrise Rotary Club, and the Bozeman Noon Rotary Club. The dinner is scheduled for Thursday evening May 29t" from 5:30 to 8:30 P.M. I made a call to Chris Cornelius of Ted's Montana Grill to inquiry how the invitee list was determined. He informed me that the list consisted of influential members of the Community to include public officials. The 1977 Legislature enacted a set of standards governing the conduct of all public officials. MCA § 2-2-101 to -132. These statutes "set forth a code of ethics prohibiting conflict between public duty and private interest as required by the constitution of Montana.... [and recognize] that some actions are conflicts per se between public duty and private interest while other actions may or may not pose such conflicts depending upon the surrounding circumstances."MCA § 2- 2-101. Thus, "it is necessary to look at each particular transaction or relationship in conjunction with the surrounding circumstances." See 37 Mont. Att'y Gen. Op. 104 (1993) and City Attorney Formal Opinion 08-001 (2008). MCA § 2-2-104(1) enumerates certain actions which constitute a breach of fiduciary duty if performed by a public officer. This section provides in its pertinent part: 1 2-2-104. Rules of conduct for public officers, legislators, and public employees. (1) Proof of commission of any act enumerated in this section is proof that the actor has breached the actor's public duty. A public officer, legislator, or public employee may not: (b) accept a gift of substantial value or a substantial economic benefit tantamount to a gift: (i) that 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 (ii) that 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. Two requirements must be met before there is a violation of this statute: 1, acceptance of a gift of substantial value or substantial economic benefit;and 2. the gift would tend to improperly influence departure from faithful and impartial discharge of public duty; or the gift was given as a reward for official action taken. The second requirement employs the "reasonable person' standard. If there is no gift, then there is no need to consider the second requirement. The term of'-gift"was not defined until 1995 when the legislature defined "gift of substantial value". MCA § 2-2-102(3)reads: (a) "Gift of substantial value"means a gift with a value of$50 or more for an individual. (b) The term does not include: (i) a gift that is not used and that, within 30 days after receipt, is returned to the donor or delivered to a charitable organization or the state and that is not claimed as a charitable contribution for federal income tax purposes; (ii) food and beverages consumed on the occasion when participation in a charitable, civic, or community event bears a relationship to the public officer's or public employee's office or employment or when the officer or employee is in attendance in an official capacity; (iii) educational material directly related to official governmental duties; (iv) an award publicly presented in recognition of public service; or (v) educational activity that: (A) does not place or appear to place the recipient under obligation; (B) clearly serves the public good; and (C) is not lavish or extravagant. The gift must be of a"$50 value or more for an individual." The invitation limits two guests per invitation. The invitation may be a gift under this statute depending on the value of the dinners. However,there is no need to determine value in this situation as the free dinner in the invitation constitutes a prohibited gift under the Bozeman Municipal Code. 2 BMC § 2.01.090 states "No official or employee shall accept a gift, gratuity, or favor from any person or entity, except as authorized by law.""Authorized by law" requires specific authorization by statute, constitution, or ordinance. See Bozeman Daily Chronicle v. City of Bozeman Police Department, 859 P.2d 435 (Mont. 1993) and Allstate Ins. Co. v. City of Billings, 780 P.2d 186 (Mont. 1989). MCA § 2-2-104(1) is not a specific authorization. MCA § 2-2-104(1)prohibits receiving gifts of substantial value, but it does not specifically authorize the receipt of gifts. Any implication of authorization created by the prohibition is contrary to the intent of BMC § 2.01.090. BMC. § 2.01.090 was adopted by Ordinance 1240 in 1987. The minutes indicate that the ordinance was to be more restrictive than state law. The Commission struck the language "which has a value of more than$15" from the definition of"financial interest when it adopted ordinance 1240. See 7 July 1987 Bozeman City Commission Minutes. In discussing possible revision to this ordinance two years later, the Commission"concurred that the code of ethics as set forth in the State statute is not adequate, noting a more restrictive code is desirable."See 25 September 1989 Bozeman City Commission Minutes. I previously opined that the receipt of gifts of nominal value from a foreign dignitary was prohibited by this ordinance.See City Attorney Opinion dated 21 June 1993,to Commissioner Vincent, subject: Receipt of Gifts. The City Commission did not change this code provision after my opinion. The most recent opportunity to amend this section of the ordinance came after the adoption of the charter, when the Commission amended the ethics ordinance but did not amend the gift section. I must conclude that the intent of BMC. § 2.01.090 is to prohibit gifts offered because of a recipient's official position, regardless of the value of the gift. In conclusion, it is my opinion the acceptance of a free dinner offered by Ted's Montana Grill constitutes a prohibited gift under the Bozeman Ordinance. It is the free dinner that constitutes the gift. If the recipient pays full market value for the dinner,then there would be no violation of this provision. Pursuant to BMC § 2.01.160C, an employee or official may rely upon this formal opinion and if the employee or official acts in good faith in accordance with the provisions and findings of this opinion then the employee or official will not be subject to prosecution under the Bozeman Municipal Code. However, I am unable to provide the employee or official immunity-from prosecution under state law, I hope you found this helpful. If you have any questions about this matter, please contact me. Respe ully Submitted Paul . Luwe Bozeman City Attorney ' Although the minutes refer to the definition of"financial interest"rather than to gifts,the deletion of value evinces an intent to not employ the use of dollar values. 3 Formal Ethics Opinion 08-001 TO: Commissioner Eric Bryson DATE: May 21, 2008 RE: CUP for 119 S. Church Submitted by ADSGC QUESTION Do you have a conflict of interest that precludes you from taking official action on the Conditional Use Permit submitted by Alcohol & Drug Services of Gallatin County (ADSGC) for the halfway house to be located at 119 South Church? ANSWER You do not have a conflict of interest that precludes you from participating and voting on the Conditional Use Permit referenced above. DISCUSSION You requested my opinion on whether you have a conflict of interest that precludes you from participating and voting on the Conditional Use Permit submitted by Alcohol & Drug Services of Gallatin County(ADSGC)for the halfway house to be located at 119 South Church. This opinion is prompted by your position as Director of Court Services for Gallatin County. Conflict of interest issues are factual determinations and are depended upon the particular facts of each situation. Alcohol & Drug Services of Gallatin County (ADSGC) is a private non-profit corporation and is licensed by the Montana Department of Public Health and Human Services. Addictive and Mental Disorders Division. The 2007 Legislature provided funding for the treatment of Chemical Dependency to the Department of Health and Human Services (DHHS). DHHS issued requests for proposals for an eight site multi- level residential treatment system to be operated across the state of Montana. Boyd Andrew Community Services was awarded the contract. One of the eight sites is being proposed at 119 South Church and will be operated by ADSGC. The site at Bozernan will be a halfway house for up to eight male individuals. ADSGC has submitted an application to the City for a conditional use permit for this residential facility. Gallatin Court Services provides pre-trial,post-conviction, and specialty court services to all levels of the court system in Gallatin County. You indicated that Court Services cannot place an individual in this facility, although there may be participants involved in your programs that reside there. You have no administrative responsibilities for the funding or operation of the proposed residential facility. Moreover, you have not been involved in the creation of this program. You are not an officer or board member of ADSGC. As far as you know, there is no connection between the funding of your program and contributions to ADSGC. 1 Specific conflicts of interests are addressed by examining the State Code of Conduct, Title 2, Chapter 2,Part 1. These statutes"set forth a code of ethics prohibiting conflict between public duty and private interest as required by the constitution of Montana." MCA, §2-2-101. MCA § 2-2-I03 sets forth a public official's responsibility to act in the public trust and for the benefit of the people of the state. MCA § 2-2-1041 covers prohibitions and limitations on use of confidential information,acceptance of gifts and benefits tantamount to a gift, and dual public employment. Your question does not pertain to these prohibitions. MCA § 2-2-1052 set forth ethical rules of conduct pertaining to acquiring a business or undertaking that would be economically benefited by an official action or that would cause economic detriment of a competing business or undertaking. You have no involvement in a contract or business,and you have no personal interest in ADSGC nor do you serve in any capacity within this nonprofit organization. The Attorney General has opined that there is a conflict of interest where an individual has responsibility for administering the disbursement of funds while also serving as a member of the receiving organization of these Rinds. See 38 Mont. Att'y. Gen. Op. 55 (1979) and Letter of Advice,28 October 2003,to Linda McCulloch. Although Gallatin County may provide funding to ADSGC, you neither administer the disbursement of any funds nor serve on any ADSGC's boards. MCA§2-2-121' delineate acts that are breaches of public duty. Your situation does not involve any of the delineated acts. I find no violation of the relevant statutory guidelines found in Title 2,chapter 2,part 1,MCA,pertaining to the state standards of conduct. Likewise,I found no violations of MCA§ 7-5-4109(1)4 Bozeman Municipal Code also provides for similar prohibitions as are found in state law, but often are more restrictive than state law.5 However,under the facts presented I do not find any violation of the relevant Bozeman Municipal Code provisions. In conclusion,it is my opinion that you do not have a conflict of interest that precludes you from participating and voting on the Conditional Use Permit for the halfway house to be located at 119 South Church. Pursuant to BMC § 2.01.160C,you may rely upon this formal opinion and if you act in good faith in accordance with the provisions and findings of this opinion you will not be subject to prosecution under the Bozeman Municipal Code. However, I am unable to provide you immunity from prosecution under state law. I hope you found this helpful. If you have any questions about this matter,please contact me. Wubmitted e Bozeman City Attorney 2 t 2-2-104. Rules of conduct for public officers,legislators,and public employees.(1)Proof of commission of any act enumerated in this section is proof that the actor has breached the actor's public duty.A public officer,legislator,or public employee may not: (a) disclose or use confidential information acquired in the course of official duties in order to further substantially the individual's personal economic interests;or (b) accept a gift of substantial value or a substantial economic benefit tantamount to a gift: (i) that 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 (ii) that 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. (2) An economic benefit tantamount to a gift includes without limitation a loan at a rate of interest substantially lower than the commercial rate then currently prevalent for similar loans and compensation received for private services rendered at a rate substantially exceeding the fair market value of the services. Campaign contributions reported as required by statute are not gifts or economic benefits tantamount to gifts. (3)(a) Except as provided in subsection(3)(b),a public officer,legislator,or public employee may not receive salaries from two separate public employment positions that overlap for the hours being compensated,unless: (i) the public officer,legislator,or public employee reimburses the public entity from which the employee is absent for the salary paid for performing the function from which the officer,legislator,or employee is absent;or (ii) the public officer's,legislator's,or public employee's salary from one employer is reduced by the amount of salary received from the other public employer in order to avoid duplicate compensation for the overlapping hours. (b) Subsection(3)(a)does not prohibit: (i) a public officer,legislator,or public employee fi•om receiving income from the use of accrued leave or compensatory time during the period of overlapping employment;or (ii) a public school teacher from receiving payment from a college or university for the supervision of student teachers who are enrolled in a teacher education program at the college or university if the supervision is performed concurrently with the school teacher's duties for a public school district. (c) In order to determine compliance with this subsection(3),a public officer, legislator,or public employee subject to this subsection(3)shall disclose the amounts received from the two separate public employment positions to the commissioner of political practices. 2-2-105. Ethical requirements for public officers and public employees.(1)The requirements in this section are intended as rules of conduct,and violations constitute a breach of the public trust and public duty of office or employment in state or local government. (2) Except as provided in subsection(4),a public officer or public employee may not acquire an interest in any business or undertaking that the officer or employee has reason to believe may be directly and substantially affected to its economic benefit by official action to be taken by the officer's or employee's agency. (3) A public officer or public employee may not,within 12 months following the voluntary termination of office or employment,obtain employment in which the officer or employee will take direct advantage,unavailable to others,of matters with which the officer or employee was directly involved during a term of office or during employment.These matters are rules,other than rules of general application,that the officer or employee actively helped to formulate and applications,claims,or contested cases in the consideration of which the officer or employee was an active participant. (4) When a public employee who is a member of a quasi-judicial board or commission or of a board,commission,or committee with rulemaking authority is required to take official action on a matter as to which the public employee has a conflict created by a personal or private interest that would directly give rise to an appearance of impropriety as to the public employee's influence,benefit,or detriment in regard to the matter,the public employee shall disclose the interest creating the conflict prior to participating in the official action. (5) A public officer or public employee may not perform an official act directly and substantially affecting a business or other undertaking to its economic detriment when the officer or employee has a substantial personal interest in a competing firm or undertaking. 3 3 2-2-121. Rules of conduct for public officers and public employees.(1)Proof of commission of any act enumerated in subsection(2)is proof that the actor has breached a public duty. (2) A public officer or a public employee may not: (a) subject to subsection(7),use public time, facilities,equipment,supplies,personnel,or funds for the officer's or employee's private business purposes; (b) engage in a substantial financial transaction for the officer's or employee's private business proposes with a person whom the officer or employee inspects or supervises in the course of official duties; (c) assist any person for a fee or other compensation in obtaining a contract,claim, license,or other economic benefit from the officer's or employee's agency; (d) assist any person for a contingent fee in obtaining a contract,claim,license,or other economic benefit from any agency; (e) perform an official act directly and substantially affecting to its economic benefit a business or other undertaking in which the officer or employee either has a substantial financial interest or is engaged as counsel,consultant,representative,or agent;or (f) solicit or accept employment,or engage in negotiations or meetings to consider employment, with a person whom the officer or employee regulates in the course of official duties without first giving written notification to the officer's or employee's supervisor and department director. (3)(a) Except as provided in subsection(3)(b),a public officer or public employee may not use public time,Facilities,equipment,supplies,personnel,or funds to solicit support for or opposition to any political committee,the nomination or election of any person to public office,or the passage of a ballot issue unless the use is: (i) authorized by law;or (ii) properly incidental to another activity required or authorized by law,such as the function of an elected public officer,the officer's staff,or the legislative staff in the normal course of duties. (b) As used in this subsection(3),"properly incidental to another activity required or authorized by law"does not include any activities related to solicitation of support for or opposition to the nomination or election of a person to public office or political committees organized to support or oppose a candidate or candidates for public office. With respect to ballot issues,properly incidental activities are restricted to: (i) the activities of a public officer,the public officer's staff,or legislative staff related to determining the impact of passage or failure of a ballot issue on state or local government operations; (ii) in the case of a school district,as defined in Title 20,chapter 6,compliance with the requirements of law governing public meetings of the local board of trustees,including the resulting dissemination of information by a board of trustees or a school superintendent or a designated employee in a district with no superintendent in support of or opposition to a bond issue or levy submitted to the electors.Public funds may not be expended for any form of commercial advertising in support of or opposition to a bond issue or levy submitted to the electors. (c) This subsection(3)is not intended to restrict the right of a public officer or public employee to express personal political views. (4) A candidate,as defined in 13-1-101(6)(a),may not use or permit the use of state funds for any advertisement or public service announcement in a newspaper,on radio,or on television that contains the candidate's name,picture,or voice except in the case of a state or national emergency and then only if the announcement is reasonably necessary to the candidate's official functions. (5) A public officer or public employee may not participate in a proceeding when an organization, other than an organization or association of local government officials,of which the public officer or public employee is an officer or director is: (a) involved in a proceeding before the employing agency that is within the scope of the public officer's or public employee's job duties;or (b) attempting to influence a local,state,or federal proceeding in which the public officer or public employee represents the state or local government. (6) A public officer or public employee may not engage in any activity,including lobbying,as defined in 5-7-102,on behalf of an organization,other than an organization or association of local government officials,of which the public officer or public employee is a member while performing the public officer's or public employee's job duties.The provisions of this subsection do not prohibit a public officer or public employee from performing charitable fundraising activities if approved by the public officer's or public employee's supervisor or authorized by law. 4 (7) A listing by a public officer or a public employee in the electronic directory provided for in 30-17-101 of any product created outside of work in a public agency is not in violation of subsection(2)(a) of this section. The public officer or public employee may not make arrangements for the listing in the electronic directory during work hours. (8) A department head or a member of a quasi-judicial or rulemaking board may perform an official act notwithstanding the provisions of subsection(2)(e) if participation is necessary to the administration of a statute and if the person complies with the disclosure procedures under 2-2-131. (9) Subsection(2)(d)does not apply to a member of a board,commission,council,or committee unless the member is also a full-time public employee. (10) Subsections(2)(b)and(2)(e)do not prevent a member of the governing body of local government from performing an official act when the member's participation is necessary to obtain a quorum or to otherwise enable the body to act.The member shall disclose the interest creating the appearance of impropriety prior to performing the official act. "7-5-4109. Control of conflict of interest.(1)The mayor, any member of the council,any city or town officer,or any relative or employee of an enumerated officer may not be directly or indirectly interested in the profits of any contract entered into by the council while the officer is or was in office. s 2.01.040 Standards of Conduct A. Officials and employees have an obligation to act morally and honestly in discharging their responsibilities. B. Officials and employees shall conduct themselves with propriety, discharge their duties impartially and fairly, and make continuing efforts toward attaining and maintaining high standards of conduct. C. Each official or employee serving on a multimember agency is expected to devote the time and effort necessary to the successful functioning of such agency. D. No official or employee shall improperly use, directly or indirectly, his city position to secure any financial interest or personal interest for himself or others. E. No official or employee shall, for any reason, use or attempt to use his position to improperly influence any other official or employee in the performance of his official duties. 2.01.070 Conflict of Interest A. No official or employee shall engage in any employment or business which conflicts with the proper discharge of his official duties, B. No official or employee shall have 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 fi•om acting on the matter,and shall not communicate about such matter with any person who will participate in the action to be taken on such matter. C. 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 fi-om any action of such agency, either personally or through an associate or partner. D. No 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 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 5 himself from acting on the matter, and shall not communicate about such matter with any person who will participate in the action to be taken on such matter. E. Nothing in this section shall be interpreted or construed to prohibit any official or employee from exercising his legal rights as to his 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 own personal interest before an agency of which he 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. 6