Ordinance 17-06 Amend HCC to Appoint Hearing Officer for Ethics Complaints and Clarify Investigative Process

CITY OF HOMER

HOMER, ALASKA

Aderhold

    ORDINANCE 17-06

 

AN ORDINANCE OF THE CITY COUNCIL OF HOMER, ALASKA, amending HOMER CITY CODE 2.80 AND HOMER CITY CODE 1.18.050 TO appoint a hearing officer to hear ethics complaints against city council members and the mayor and to amend homer city code section 2.08.050 to permit the board of ethics or hearing officer to dismiss witnesses prior to the adminsitrative hearing AND CLARIFY THE INVESTIGATIVE AND HEARING PROCESS.

 

WHEREAS, The City Council highly values the public’s confidence in the propriety and fairness of City of Homer (“City”) administrative hearings and appeals; and

 

WHEREAS, It is in the City’s best interest to designate a hearing officer to decide ethics complaints filed against City Council members or the Mayor, preserving the ability of Council members to work collaboratively and respectfully with one another while maintaining the accountability and responsible governance of each member; and

 

WHEREAS, Permitting the Board of Ethics or a hearing officer to utilize witness testimony in a manner that preserves the confidentiality of the Board’s or the officer’s investigation and review.

 

NOW, THEREFORE, THE CITY OF HOMER ORDAINS:

 

Section 1.  Section 1.18.050 entitled “Procedures for violation reporting” is amended to read as follows:

 

a. Any person who believes that a violation of any portion of this chapter has occurred may file a written complaint of potential violation with the City Clerk’s office.

b. All written complaints of potential violation submitted under this chapter shall be signed by the person submitting the complaint. A written complaint of potential violation shall state the address and telephone number of the person filing the complaint, identify the respondent, and affirm to the best of the person’s knowledge and belief the facts alleged in the complaint of potential violation signed by the person are true. The person filing the complaint of potential violation shall identify the section of this chapter the person believes was violated, state why the person signing the complaint of potential violation believes the facts alleged constitute a violation of that section, and identify any documentary or testimonial evidence the person filing the complaint believes is in support of the notification of potential violation.

c. Written complaints of potential violations filed with the City Clerk’s office shall be forwarded to the Board of Ethics under Chapter 2.80HCC. Except as otherwise provided in this section, the Board of Ethics has sole jurisdiction to decide the merits of the complaint filed under this chapter.

d. The City Clerk shall appoint a hearing officer to decide and investigate properly filed written complaints against City Council members or the Mayor and shall have sole jurisdiction to decide the merits of the complaint filed under this section. 

 

 

Section 2. Section 2.80.010 is repealed and replaced as follows:

 

a. There is hereby established a Board of Ethics.

b. The Board shall be comprised of all members of the City Council and the Mayor. The Mayor, or the Mayor Pro Tem in the Mayor’s absence, will serve as presiding officer of the Board.  In the absence of both, the members of the Board shall elect a presiding officer from among its members. 

c. The City Attorney or other legal counsel for the Board may assist the Board at every stage of the proceedings, but shall have no vote.

d. A quorum of the Board shall be a majority of all members who are not excused for cause, such as being the complainant, the respondent, a witness, having a conflict of interest, or other cause for recusal. However, in no event may a quorum be less than three.

e. Decisions of the Board shall be adopted by a majority of the members who are qualified to act on the matter, where a quorum is present.

f. Unless the Board delegates such authority to another member or decides that no one shall have such authority, and except as provided for hearing officers in subsection (h) of this section, the presiding officer shall have authority to make procedural decisions between Board meetings on behalf of the Board.  Examples of matters that may be decided by such delegate include scheduling hearings and other matters, establishing pre-hearing requirements and filing deadlines for motions, exhibits, witness lists, hearing briefs, and deciding other procedural matters.

g. The presiding officer shall vote on every question, unless required to abstain for cause, and shall not have power to veto any action of the Board.

h. A hearing officer designated by the City Clerk under HCC 1.18.050 shall have sole authority to investigate the complaint they have been retained to hear and to make procedural decisions regarding the investigation and hearing of that complaint.  The designated hearing officer shall be the sole decision-maker and shall comply with the procedures and requirements of this chapter provided for the Board and its members.

 

Section 3. Section 2.80.020 is amended to read as follows:

 

2.80.020 Function and authority.

 

The Board of Ethics or a hearing officer appointed under this chapter has authority to perform the following functions:

 

a. Investigate reported violations of Chapter 1.18 HCC.

 

b. Hear and decide written complaints of violations of Chapter 1.18 HCC.

 

c. Hear and decide on requests for exceptions as specified in Chapter 1.18 HCC.

 

d. Make findings and recommendations concerning sanctions, civil penalties and remedies for violations as provided in the code.

 

e. Adopt recommended policies and procedures governing the Board’s conduct of business.

 

f. Upon application of the complainant, respondent, or at the Board’s or hearing officer's discretion, compel by subpoena the appearance and sworn testimony, at a specified time and place, of a person the Board or hearing officer reasonably believes may be able to provide information relating to a matter under investigation by the Board or hearing officer or the production of documents, records or other items the Board or hearing officer reasonably believes may relate to the matter under consideration.

g. Administer oaths and receive testimony from witnesses appearing before the Board or hearing officer.

 

h. Request City agencies to cooperate with the Board or hearing officer in the exercise of the Board's or hearing officer's jurisdiction.

 

i. Request the advising attorney to seek assistance of the Superior Court to enforce the Board's or hearing officer's subpoena.

 

j. Conduct investigative hearings in executive session, pursuant to notifications alleging violations of matters within the authority of the Board or hearing officer.

 

Section 4. Section 2.80.030 is amended to read as follows:

 

2.80.030 Confidentiality – Initial review.

 

a. Each written complaint of a violation of Chapter 1.18 HCC received by the City Clerk’s office shall be assigned an identification number, which shall be used in lieu of names when referring to the complaint to maintain confidentiality. The City Clerk and the Board or hearing officer shall keep all written complaints of potential violation confidential during investigation and the Board’s or hearing officer's deliberative process. Complaints of potential violation may be disclosed only to the staff member of the City Clerk’s office providing administrative support to the Board or hearing officer, members of the Board except when a hearing officer has been appointed, and legal counsel. Upon receipt of a notification of potential violation, the Board or hearing officer shall, at its next scheduled meeting or earlier, as determined by the Board Chair or hearing officer, review the complaint of potential violation and determine if further action on the notification of potential violation is warranted. The Board shall review the complaint of potential violation in executive session.  A hearing officer appointed under this chapter shall review the complaint in a confidential manner.

 

b. If the Board or hearing officer determines the facts alleged in the notification of potential violation, even if proven, do not constitute a violation, or that the Board or hearing officer lacks jurisdiction to address the complaint of potential violation, the Board or hearing officer shall return the complaint of potential violation to the complaining party or it may recommend to the person filing the complaint that it be amended and re-filed. Notifications of potential violation returned without further action shall remain confidential.

 

c. If the Board or hearing officer determines the allegation in a complaint of potential violation, if proven, may constitute a violation of a matter within the Board's or hearing officer's jurisdiction, the Board or hearing officer shall:

 

                1. Give the respondent a copy of the complaint of potential violation, along with a copy of the outline of the Board’s process under this chapter, including notice that the respondent may choose to hold the proceeding in public and may be represented by legal counsel of respondent’s choosing and at respondent’s own expense; and

 

                2. Notify both the person submitting the complaint of potential violation and respondent of the date(s) on which each may be requested to meet with the Board or hearing officer, present documentary or testimonial evidence, and assist the Board or hearing officer in resolving the potential violation.

 

Section 5. Section 2.80.040 is amended to read as follows:

 

2.80.040 Disclosure of complaint of potential violation prohibited.

 

a. A complaint of potential violation of Chapter 1.18 HCC is confidential until the Board or hearing officer completes a written report for distribution as a public record.

 

                1. No person, including the complainant, shall knowingly disclose to another person, or otherwise make public in violation of this chapter, the contents of a complaint of potential violation filed with the Board or hearing officer, unless:

 

                                i. The respondent elects to proceed in public; or

 

                                ii. The written report of the Board or hearing officer is electronically published by the City Clerk.

 

                2. Breach of confidentiality required by any provision of this chapter is a violation of this chapter subject to punishment.

 

                3. A person filing a complaint of potential violation shall keep confidential the fact that the person has filed the complaint with the City, as well as the contents of the complaint of potential violation. If the Board or hearing officer finds probable cause to believe that the person filing the notice of complaint violation has violated confidentiality under this chapter, the Board or hearing officer shall immediately dismiss the complaint of violation. Dismissal under this subsection does not affect the right of the Board or hearing officer or another person to initiate a proceeding on the same factual allegations by filing a complaint of potential violation.

 

                4. Public disclosure resulting from corrective action under this chapter is not a violation of this section.

 

Section 6. Section 2.80.050 is amended to read as follows:

 

2.80.050 Conduct of investigation and standard of proof.

a. The Board's investigation shall be conducted in executive session, unless the respondent requests to hold the Board's investigation on the notification of potential violation in public. The hearing officer’s investigation shall be conducted in a manner to maintain confidentiality unless the respondent requests to hold the hearing officer’s investigation on the notification of potential violation in public. 

1. The respondent and the person who filed the notification of potential violation may identify other individuals and documents that each would like the Board or hearing officer to interview and review.

                2. If an individual with information bearing on the notification of potential violation is unwilling to come forward with information, the respondent and the person who filed the notification of potential violation may each request the Board or hearing officer to subpoena the person and any documentary evidence.

3. Persons appearing before the Board or hearing officer may be represented by counsel or other person serving in a representative capacity.

4. The Board or hearing officer may question the respondent, the person who filed the notification of potential violation, and other persons appearing before the Board or hearing officer.

5. The Board or hearing officer may solicit questions and testimony from the person filing the notification of potential violation, the respondent and other persons appearing for the purpose of providing information to the Board or hearing officer. The Board or hearing officer may solicit questions from counsel present to represent persons appearing before the Board or hearing officer, but all questions during the Board's or hearing officer’s investigation shall be posed through and by a member of the Board or the hearing officer. Consistent with due process, the Board or hearing officer may limit or prohibit questions suggested to the Board or hearing officer by or on behalf of persons appearing before the Board or hearing officer.

6. The standard of proof to be applied by the Board or hearing officer in determining a violation under this chapter is proof by a preponderance of the evidence.

7. Technical rules of evidence do not apply, but the findings of the Board shall be based upon reliable and relevant information presented to the Board.

8. The Board's or hearing officer’s finding of a violation of this chapter must be supported by substantial evidence.

9. The Board's or hearing officer’s findings shall not be binding in a subsequent sanctions proceeding.

10. When the Board's or hearing officer’s investigation is conducted in executive session or confidentially, the public shall be excluded but an executive session of the Board shall be electronically recorded. The recording shall be available for access as a public record after publication by the municipal clerk of the proposed resolution and settlement.

 

Section 7.  Section 2.80.060 is amended to read as follows:

 

Board member and hearing officer disclosures.

 

When an investigation is convened in executive session to determine whether the respondent has violated Chapter 1.18 HCC, the Board members will be requested to disclose any conflict of interest, ex parte communications, or other facts that may affect their qualification to hear the matter. After such a disclosure, the other members of the Board shall determine whether a member shall be excused for cause.

 

A hearing officer shall disclose any conflict of interest or ex parte communications with the complainant or respondent before conducting an investigation or holding a hearing under this chapter.  The complainant and the respondent have ten days from the date the written disclosure is sent to the parties to file an objection to the hearing officer with the City Clerk.  Upon receiving an objection, the City Clerk shall appoint a new hearing officer.

 

Section 8. Section 2.80.061 is amended to read as follows:

 

2.80.061 Duty of cooperation.

 

A City official or the City Manager subject to a complaint of a violation shall work cooperatively with the City Clerk to establish a hearing date and shall appear at the place and time set for the hearing, regardless of the respondent’s intentions concerning defense or exercise of other rights. Failure to appear, except when failure results from a serious condition or event that prevented the respondent’s appearance, is a breach of respondent’s duties under this chapter and in itself may result in a summary finding of violation by the Board or hearing officer and imposition of remedies, penalties and disciplinary action under HCC 2.80.070. For the purposes of this section, a “serious condition or event” may include a serious medical condition, a serious family emergency requiring the presence of the party, a death in the family, or other similar cause that prevents the respondent’s attendance at the hearing. Nothing in this section shall prevent the rescheduling of a hearing for cause upon request of the respondent or the complainant.

Section 9. Section 2.80.065 is amended to read as follows:

 

2.80.065 Decisions on the record.

 

Using the identification number of the complaint of potential violation to protect confidentiality, the Board shall vote or hearing officer shall determine in open session on these questions:

 

a. Whether the Board or hearing officer finds by a preponderance of the evidence one or more violations within the jurisdiction of the Board or hearing officer; and

 

b. Whether the Board or hearing officer recommends further administrative or remedial actions; and

 

c. What specific sanctions, corrective actions or referrals, if any, the Board or hearing officer recommends pursuant to 2.80.070.

 

d. If the Board or hearing officer does not find a violation under Chapter 1.18 HCC, the Board or hearing officer shall prepare a confidential statement of closure listing the complainant and respondent, the assigned identification number, the allegations, the hearing date, and the finding that no allegation was substantiated by the Board or hearing officer in whole or in part, and the date of Board  or hearing officer closure. At the sole discretion of the respondent, the Board or hearing officer may release the statement of closure as a public document.

               

Section 10. Section 2.80.067 is amended to read as follows:

 

2.80.067 Timely completion.

 

The Board or hearing officer shall complete action on a complaint of potential violation and investigations within 90 days of the filing of the complaint of potential violation. By a majority vote, the Board or hearing officer may extend the completion date for up to an additional 90 days, or longer for good cause shown.

 

Section 11. Section 2.80.070 shall be amended to read as follows:

 

2.80.070 Sanctions, civil penalties and remedies.

 

a. Upon conviction for any violation of Chapter 1.18 HCC under criminal procedures or upon a determination of any violation of Chapter 1.18 HCC after an investigation conducted by the Board or hearing officer under this chapter, the Board or hearing officer may impose (or recommend in the case of subsection (a)(1) of this section) as a sanction, penalty, or remedy any or all of the following, as appropriate to the seriousness of the violation:

 

                1. A recommendation to the City Council that the office of a City Council member or the position of City Manager be declared vacant for a serious violation that is (a) flagrant or (b) willful and knowing. A recommendation that the office of the Mayor be declared vacant may be made only if the violation justifies a declaration of vacancy under AS 29.20.280. Only the City Council may actually declare any of these positions vacant.

 

                2. A member of a board or commission may be removed from the board or commission.

 

                3. A public or private reprimand may be given to the official.

 

                4. The official may be ordered to refrain from voting, deliberating, or participating in any matter in violation of Chapter 1.18 HCC.

 

                5. The committee assignments of an official may be revoked.

 

                6. An official’s privilege to travel at City expense on City business may be revoked or restricted.

 

                7. A contract, transaction or appointment, which was the subject of an official act or action of the City that involved the violation of a provision of Chapter 1.18 HCC, may be voided.

 

                8. The official must forfeit or make restitution of any financial benefit received as a consequence of a violation of Chapter 1.18 HCC.

 

                9. A civil fine of not more than $1,000 per violation may be imposed.

 

Section 12. Section 2.80.080 shall be amended to read as follows:

 

2.80.080 Record of proceedings and public record.

 

Permanent records and minutes shall be kept of Board's or hearing officer's proceedings. Such minutes shall record the vote of each member upon every question decided in public. Every decision or finding shall immediately be filed in the office of the City Clerk, and shall be a public record open to inspection by any person. Every finding and recommendation shall be directed to the City Council at the earliest possible date.

 

Section 13. Section 2.80.090 is amended to read as follows:

 

2.80.090 Settlement of complaints.

 

a. The respondent in any case accepted for investigation may propose a resolution and settlement of the complaint. A proposed resolution and settlement will include the admitted violation of Chapter 1.18 HCC; the remedial actions agreed to by the respondent subject to the City Council’s concurrence; any proposed preventive actions to be undertaken to avoid similar violation by respondent or others in the future; and other matters required by the Board or hearing officer.

 

b. A proposed resolution and settlement is subject to approval by the Board or hearing officer and has no effect unless approved by the Board or hearing officer. The Board or hearing officer will give the complaining person the opportunity to review and comment on the proposed resolution and settlement prior to approving it. Until approved by the Board or hearing officer, a proposed resolution and settlement must be kept confidential.

 

c. The proposed resolution and settlement becomes public record upon final approval by the Board or hearing officer.

 

Section 14. Section 2.80.100 is amended to read as follows:

 

2.80.100 Limitation period.

 

a. Notwithstanding any other section of this chapter or Chapter 1.18 HCC, and subject to subsection (b) of this section, the Board or hearing officer only may investigate or otherwise act upon a complaint of a potential violation of Chapter 1.18 HCC that is received by the City Clerk’s office within five years after the date of the alleged violation.

 

b. After the time limitation in subsection (a) of this section has expired, the Board or hearing officer may investigate or otherwise act upon a complaint of a potential violation of Chapter 1.18 HCC that is received by the City Clerk’s office within one year after the date of discovery of the alleged violation, but in no case shall this subsection extend the period of limitation in subsection (a) of this section by more than three years.

 

Section 15. This ordinance shall take effect upon its adoption by the Homer City Council.

 

Section 16.  This ordinance is of a permanent and general character and shall be included in the City Code.

 

                ENACTED BY THE CITY COUNCIL OF HOMER, ALASKA, this 13th day of February, 2017.

 

                                                                                    CITY OF HOMER

 

 

____________________________________

                                                                                                                BRYAN ZAK, MAYOR

 

ATTEST:

 

_____________________________

JO JOHNSON, MMC, CITY CLERK

 

YES:

NO:

ABSTAIN:

ABSENT:

 

 

 

First Reading:

Public Hearing:

Second Reading:

Effective Date: 

 

Reviewed and approved as to form.

 

                                                                  __________                                                                                                                  

Mary K. Koester, City Manager                                                              Holly C. Wells, City Attorney

Date:                                                     __________                                    Date:                                                                   

 

 

Fiscal Note: NA