HomeMy WebLinkAbout19- Formal Ethics Opinion 2019-01 - J. Jolliff - Ethics Rules Related to Prospective Private Business of an Employee MT Greg Sullivan, City Attorney
Bekki McLean, Chief Prosecutor
City Attorney's Office Tim Cooper, Assistant City Attorney
Karen Stambaugh, Assistant City Attorney
Kyla Murray, Prosecutor
Edward Hirsch, Prosecutor
Formal Ethics Opinion 2019-01 Samantha Niesen, Prosecutor
TO: Jennifer Jolliff, c/o Matthew I. Sack
C: City of Bozeman Board of Ethics
DATE: August 9, 2019
RE: Jennifer Jolliff: Ethics Rules Related to Prospective Private Business of an
Employee
QUESTION
In a letter dated July 18,2019,your attorney,Matthew I. Sack,asked whether conflict(s)of interest
exist between your(1) employment as a City Service Worker and Arborist and (2)your operation
of a prospective arboriculture consulting business in Gallatin County and Bozeman. You also
asked a similar question in a March 5,2018 email to Karen Stambaugh,Assistant City Attorney.
ANSWER
As described in the July 18th letter from your attorney and your email with Ms. Stambaugh, the
conduct of your prospective personal business does not by the mere fact of its existence or
operation create a conflict of interest under the City of Bozeman's Code of Ethics or under state
law. However, you must be cognizant of the ongoing potential for a conflict of interest between
your duties with the City and your prospective business and adhere to City and state requirements
regarding the use of confidential information in your personal business.
DISCUSSION
Based on the facts as presented in your attorney's letter and your email, you make the following
representations:
1. Your current position at the City is City Service Worker and Arborist.
2. You contemplate operating your own private arboriculture consulting business in Gallatin
Countv and Bozeman.
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Bozeman, • 1
TDD: 406-582-2301 THE MOST LIVABLE PLACE.
3. In your position with the City you assert you do not"take or influence public action"where
you have"a financial or personal interest in the same matter."
4. You will not use any City resources in your private business,such as vehicles or equipment
and will not conduct any of your private business during your regular hours of City
employment.
5. You plan to work only on private property.
For purposes of this opinion, I will assume the above representations are true. If facts change or if
such representations are determined to be inaccurate,this opinion may change.
Section 7(a) of the Bozeman City Charter prohibits the use of public office for private gain. The
City's Charter requires that the City Commission implement this restriction through the adoption
of ordinances. The Commission has done so through the City's Code of Ethics. Chapter 2, Article
3, Division 4, BMC.
Likewise, Article XIII, Section 4 of the Montana Constitution requires the Montana Legislature
"provide a code of ethics prohibiting conflict between public duty and private interest for (...) alI
(...) local (...}employees."The Montana Legislature has adopted Title 2, Chpt. 2, Part 1, MCA.
Section 2-2-105, MCA prohibits public employees from acquiring an interest in any business that
the employee has reason to believe may be directly and substantially affected to its economic
benefit by official action to be taken by the employee's agency. 2-2-105(2), MCA. Further, a
public employee may not, within 12 months following the voluntary termination of employment,
obtain employment in which the employee will take direct advantage, unavailable to others, of
matters with which the employee was directly involved during employment. 2-2-105(3), MCA.
In addition, a public employee may not disclose or use confidential information acquired in the
course of official duties in order to further substantially the individual's personal economic
interest. 2-2-104(2),MCA.
As you indicated in your letter, a public employee may not use public time, facilities, equipment,
supplies,personnel,or funds for the officer's or employee's private business purposes. 2-2-121(2),
MCA. A public employee may not engage in a substantial financial transaction for the employee's
private business purposes with a person whom the employee inspects or supervises in the course
of official duties, or perform an official act directly and substantially affecting to its economic
benefit a business in which the employee has a substantial financial interest. Id.
In addition to the above, the City's Code of Ethics implements these general principles and
addresses conflicts of interest and requires that"no (...)employee shall engage in any employment
(...}which conflicts with the proper discharge of such(...}employee's duties."2.03.520.B,BMC.
In addition, the Code of Ethics specifically prohibits an employee from having a financial or
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personal interest in any transaction' with the city as to which such employee has the power to take
or influence official action. 2.03.520.C, BMC.2
Section 2.03.470.A.6, BMC, defines financial interest as:
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 $15.00, other than the official or
employee's duly authorized salary or compensation for the official or employee's 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 the official
or employee's immediate family has any direct or indirect interest as the proprietor, by
ownership of stock or partnership interest.
s 2.03.470.A.12,BMC defines"Transaction"as"the offer of,or the sale,purchase,or furnishing of,any real or personal property or services,by
or to any person or entity directly or indirectly,as vendor or vendee,prime contractor,subcontractor,or othertvise,for the use and benefit of the
city or of such other person or entity for a valuable consideration."
a See.2.03.520,BMC.-Conflict of interest.
A. Nothing in this section shall be interpreted or construed to prohibit any official or employee from exercising their own individual legal
rights as to their own personal interests in a transaction or 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 their own
personal interest before an agency of which they are a member or employee,or a member or employee of an agency to which the matter may be
appealed,shall participate in the decision of that agency or the appellate agency.
B. No official or employee shall engage in any employment or business which conflicts with the proper discharge of such official or
employee's duties.
C. No official or employee shall take or influence official action if the official or employee has a financial or personal interest in a
transaction or matter with the city.
D. If an official or employee has a financial or personal interest in the outcome of a transaction or matter coming before the agency of
which they are a member or by which they are employed,such official or employee shall:
I. Publicly disclose on the record of the agency,or to their superior or other appropriate authority,the existence of such financial or
personal interest;and
2. Except as authorized pursuant to 2.03.520.A and G,shall not engage in deliberations concerning the matter or transaction,shall be
disqualified from acting on the matter or transaction and shall not communicate about such matter or transaction with any person who will
participate in an action to be taken on such matter or transaction.
E. 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.
F. No official whether paid or unpaid,shall represent or appear on behalf of any individual or entity in transaction or matter 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 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 transaction or matter represented by an associate or partner,shall
disqualify himself/herself from acting on the transaction or matter,and shall not communicate about such matter with any person who will
participate in the action to be taken on such transaction or matter.
G. A city commissioner or mayor,as authorized pursuant to 2-2-121(10),MCA,may take action despite a conflict of interest described in
this section if that commissioner's or mayor's participation is necessary for the city commission to obtain a quorum or to otherwise enable the city
commission to act.If so,the commissioner or mayor shall disclose the interest creating the conflict prior to performing the official act.
H. This section does not absolve any official or employee from complying with Title 2,Chapter 2,MCA.If any provision of this section
is in conflict with Title 2,Chapter 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.
I. 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 2-2-131,MCA,and shall file this disclosure with the Montana Commissioner
of Political Practices prior to acting.
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The City's Code of Ethics also prohibits use of City resources for personal use of an employee,
and the use of confidential information to advance an employee's own financial or person interest.
2.03.500; 2.03.530.13, BMC. "Confidential information" is defined as "any information which is
not available to the general public and which is obtained only be reason of an official's or
employee's position." 2.03.470.A.3, BMC.
The personal business described in your letter meets the definition of a"financial interest"because
of your ownership interest in the business. However,you have also represented that your position
at the City does not allow you any influence over official action taken by the City on a transaction
or matter before the City. In addition, you state you contemplate your business would work on
private property only. Presumably this means your business would not enter into a financial
transaction with the City. Based on the foregoing representations, it does not appear at this time
and based on the information you provided the prospective business activities you describe would
violate 2.03.520.C, BMC or 2-2-105, MCA.
As noted above, the Code of Ethics prohibits you from operating the prospective business in such
a manner that it interferes with the proper discharge of your duties as a City employee. Your letter
and email do not describe how much time or effort you plan to spend on your private business
while still a City employee, but you do state the time would be outside of your regular City work
hours. Based on this representation, it does not appear at this time and based on the information
you provided the prospective business activities you describe would violate 2.03.520.13, BMC.
You specifically stated in your letter no City resources would be used in your private business.
Based on this representation,it appears at this time and based on the information you provided the
described conduct of your personal business would not violate 2.03.500, BMC or 2-2-121, MCA.
Your letter and email do not address the use of confidential infoiniation gained as a City employee
for the benefit of your personal business,so I do not address whether the conduct of your business
would violate 2.03.530, BMC. However, as noted above, pursuant to the City's and state ethics
requirements confidential information gained during employment with the City may not be used
to further the private business interests of an employee.
I feel it important to note this opinion should not be read to indicate you may never have a conflict
between your position as a City employee and your ownership of a personal consulting business.
This opinion is specific to the question you posed regarding a per se conflict between your City
employment and ownership of a private business. As such, I note there may be circumstances in
which you are involved as a City employee in operations,transactions, or decision-making where
you could be required to take or perhaps even influence official action. These circumstances could
lead to a conflict of interest. You must continually be aware of the potential for conflicts of interest
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to arise. If you move forward with establishing your business, I encourage you to communicate
actively with your supervisor and department director regarding the existence of your business to
address any potential conflicts of interest.
This opinion is provided pursuant to my authority under 2.03.630, BMC.3 Pursuant to 2.03.630.13
you may rely upon this opinion in regards to the specific transaction or activity to which this
opinion pertains. In addition,pursuant to 2.03.630.C, if you act in good faith in accordance with
the provisions and findings herein and on the facts as presented herein, you may not be subject to
prosecution or administrative action under the City's Code of Ethics. However, I am unable to
provide you immunity from prosecution under state law.
I provide this opinion in my capacity as the City Attorney for the City of Bozeman and do so on
behalf of the City of Bozeman(2.03.630.D, BMC). My opinions herein are based on facts as you
represented to me. If facts change, my opinion may change.
I hope you found this helpful. If you have any questions about this matter,please contact me.
Respe t ubmied,
CITYttTBO N AT ORNEY'S OFFICE
Greg Sullivan
City Attorney
C: Board of Ethics
3 See.2.03.630,BMC.-City attorney opinions.
A. At the request of a person,the city attorney may render an informal or formal advisory opinion with respect to the prospective conduct
of such person.An informal advisory opinion need not be written,and may be provided directly to the requestor of such opinion.A request for a
formal advisory opinion must be in writing and include all the information and documents related to the request.The request for either an
informal or formal advisory opinion must state all the material facts so the city attorney may render a complete and correct opinion.The city
attorney's formal advisory opinion must be in writing.Nothing in this division shall be construed to prohibit a request for an opinion by any
public servant from the city attorney regarding a potential conflict of interest.Neither a request for an informal or formal advisory opinion,nor
the making of a statement concerning a potential conflict of interest made by a member of the city commission in the course of abstaining from
voting or making a motion of self-recusal,shall create a presumption or inference that a public servant actually has a personal interest in the
matter about which the opinion was requested;if the city attorney elects to render an opinion,the city attorney shall,within a reasonable time,
submit a written summary of the opinion to the ethics board for the board's information;if the city attorney declines to render an opinion,nothing
shall preclude the person requesting the opinion from requesting the ethics board for an opinion.
B. Any formal advisory opinion issued pursuant to this section may be relied upon by the person directly involved in the specific
transaction or activity to which such advisory opinion has been issued,and any person directly involved in any specific transaction or activity
which is indistinguishable in all its material aspects from the transaction or activity with respect to which such advisory opinion was rendered.
C. Any person who relies upon a formal advisory opinion pursuant to this section,and who acts in good faith in accordance with the
provisions and findings of such opinion,shall not,as a result to such act,be subject to prosecution under this division or,in the case where the
opinion is exculpatory,be subject to any administrative adverse action or civil action based upon legal authority cited in that opinion.
D. The City Attorney's client is the City of Bozeman and not the individual requesting the opinion.No request for an opinion from the
City Attorney shall constitute the establishment of an attorney-client relationship with the individual requesting the opinion.
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