Ordinance 18-14(A) Amend HCC 1.18 Code of Conduct

CITY OF HOMER
HOMER, ALASKA

Aderhold

ORDINANCE 18-14(A)

AN ORDINANCE OF THE CITY COUNCIL OF HOMER, ALASKA AMENDING HOMER CITY CODE 1.18.020 TO DEFINE THE TERM “IMPARTIAL,” AMENDING HOMER CITY CODE 1.18.030 BY REQUIRING CITY COUNCIL MEMBERS TO COMPLY WITH HOMER WORKPLACE POLICIES AND PROCEDURES, REPEALING 1.18.050 AND INCORPORATING IT UNDER THE NEWLY ENACTED HOMER CITY CODE CHAPTER 1.19, BOARD OF ETHICS- COMPLAINTS, TO CLARIFY THE PRELIMINARY REVIEW PROCESS FOR ETHICS COMPLAINTS BY THE CITY CLERK AND CITY ATTORNEY PRIOR TO THEIR TRANSFER TO THE BOARD OF ETHICS OR A HEARING OFFICER, AMENDING HOMER CITY CODE 1.18.060 TO PROHIBIT ETHICS COMPLAINTS BASED UPON ACTIONS TAKEN IN ACCORDANCE WITH ADVICE FROM CITY ATTORNEY, AND REPEALING HOMER CITY CODE CHAPTER 2.80.

WHEREAS, The City of Homer, Alaska (“City”) adopted a comprehensive Ethics Code over ten years ago that identified acts prohibited by City officials and expectations that governed conduct by such officials; and

WHEREAS, The City also adopted an ethics complaint process that ensured individuals had the ability to challenge the conduct of its officials; and

WHEREAS, Changes in the City’s personnel policies and its ethics complaint process warrant updates to the City Code of Ethics and its ethics complaint process; and

WHEREAS, The City recently updated its workplace safety, harassment prevention, and respectful workplace policies that are distributed to all City employees in the City of Homer Personnel Regulations; and

WHEREAS, It is in the City’s best interest to ensure that the City’s officials, like its employees and volunteers, are held to high ethical standards; and

WHEREAS, it is in the City’s best interest to consolidate the Code of Ethics and the Board of Ethics complaint process to ensure that the intended steps of review and consideration are clear and precisely followed; and

WHEREAS, it is in the City’s best interest to expressly provide protection from ethics complaints to City Council members for acts or omissions taken in reliance on the City Attorney’s advice.

 

NOW THEREFORE, The City of Homer Ordains:

 

Section 1.  Homer City Code Section 1.18.020 entitled “Definitions” is amended to read as follows:

 

As used in this chapter and unless otherwise provided or the context otherwise requires, the following terms shall have the meanings set forth in this section:

 

“Applicant” means any person that is applying for an official action by any official, employee, or body of the City including but not limited to:

 

1. Any person authorized to act for the applicant;

 

2. If the applicant is an organization, any person who has an ownership interest in the organization or serves as an officer, director or manager of the organization.

 

“Body of the City” means the City Council and the boards, commissions, committees and task forces appointed by the City Council or the Mayor.

 

“City Manager” means the person who is hired by the City Council to manage the City of Homer.

 

“City official” means a person who holds elective office under the ordinances of the City, or who is a member of a board or commission whose appointment is subject to confirmation by the City Council.

 

“Financial interest” means:

 

1. An interest currently held by that person or an immediate family member including:

 

a. Involvement or ownership in a business; or

 

b. Property ownership, or a professional or private relationship, that is a source of income, or from which, or as a result of which, a person receives a financial benefit; or

 

c. An affiliation with an organization in which the person holds a position of management, or is an officer, director, trustee, employee, or the like.

 

2. Financial interest does not include:

 

a. Affiliation as unpaid volunteer with a legally recognized nonprofit organization; or

 

b. Financial interests of a type which are generally possessed in common with all other citizens or a large class of citizens.

 

“Gratuity” means a thing having value given voluntarily or beyond lawful obligation.

 

“Hired consultants and contractors” means a person or organization hired by the City as an independent contractor and not as an employee.

 

“Immediate family member” means:

 

1. The spouse of the person;

 

2. A life partner or person cohabiting with the person;

 

3. A child, including a stepchild and an adoptive child, of the person;

 

4. A parent, sibling, or grandparent of the person; and

 

5. A parent or sibling of the person’s spouse.

 

“Impartial” means acting in a manner that the City official believes is in the public’s best interest and not acting to benefit a financial or personal interest of the City official.   

 

“Large class of citizens” means a substantially large group of citizens as decided by official decision of the City Council made prior to the official action in question.

 

“Large class of citizens” does not include:

 

1. A single profession, regardless of the number of persons.

 

2. An individual business or organization regardless of the number of citizens it contains.

 

“Official action” means a recommendation, decision, approval, disapproval, vote, or other similar action, including inaction (when it is the equivalent of decision to take negative action), made while serving in the capacity of City official or City Manager, whether such action or inaction is administrative, legislative, quasi-judicial, advisory, or otherwise.

 

“Organization” means any business, corporation, partnership, firm, company, trust, association, or other entity, whether organized for profit or nonprofit.

 

“Partiality” applies only in quasi-judicial proceedings and means:

 

1. The ability of a member of the quasi-judicial body to make an impartial decision is actually impaired; or

 

2. The circumstances are such that reasonable persons would conclude the ability of the member to make an impartial decision is impaired and includes, but is not limited to, instances in which:

 

a. The member has a personal bias or prejudice for or against a party to the proceeding including a party’s lawyer;

 

b. The member or an immediate family member is a party, material witness to the proceeding or represents a party in the proceeding.

 

“Person” means a natural person or an organization.

 

“Political activity” means any act for the purpose of influencing the nomination or election of any person to public office, or for the purpose of influencing the outcome of any ballot proposition or question. Informing the public about a ballot proposition or question without attempting to influence the outcome of the ballot proposition or question is not political activity.

 

“Subject of the action” means anything under consideration for official action including but not limited to:

 

1. Appointments to any office or position of employment;

 

2. Any contract, project, property, or transaction subject to the action;

 

3. A platting, vacation or subdivision action;

 

4. An application for or other consideration of a license, permit, appeal, approval, exception, variance, or other entitlement;

 

5. A rezoning; and

 

6. Appeals and quasi-judicial proceedings.

 

“Substantial financial interest” means a financial interest that would result in a pecuniary gain or loss exceeding $1,000 in a single transaction or more than $5,000 in the aggregate in 12 consecutive months.

 

Section 2. Homer City Code Section 1.18.030 entitled “Standards and prohibited acts” is amended to read as follows:

 

a. City officials, the City Manager, and City hired consultants and contractors, while acting in such capacity, shall not knowingly make false statements to influence official action.

 

b. Official Action. No City official or the City Manager shall participate in any official action in which:

 

1. The person is the applicant, a party or has a substantial financial interest in the subject of the official action.

 

2. Within a period of one year after the action the person will have a substantial financial interest in the subject of the official action.

 

3. The person resides or owns land within a 300-foot periphery of any property that is the subject of any action.

 

4. The person does or will recognize a substantial financial interest as a result of the action.

 

5. Exceptions.

 

a. This subsection does not prohibit a person from acquiring a substantial financial interest in the subject of the action after the longer of 12 months after the official action is approved, or 12 months after the person’s term or employment ends.

 

b. This section does not prohibit any gain or loss that would generally be in common with all other citizens or a large class of citizens.

 

c. This section does not prohibit any gain or loss that would generally be in common with other property owners on property that is further than 300 feet from the periphery of any property that is the subject of an action.

 

c. City officials and the City Manager acting in the course of their official duties are allowed to participate in official actions on behalf of the City or when the City itself is the applicant or subject of the action.

 

d. Undue Influence. No City official or the City Manager shall attempt to influence the City’s selection of any bid or proposal, or the City’s conduct of business, in which the City official or the City Manager has a substantial financial interest. This subsection does not prohibit a City official or the City Manager from being an applicant while holding City office or City position, if the person takes no official action concerning his or her own application. A City official or City Manager may give testimony and make appearances before City bodies on his or her own behalf.

 

e. Participation in Appointments. No City official shall participate in, vote on, or attempt to influence the selection of an appointee to any board, commission or committee (1) having authority to take official action on any pending matter or application in which that official has a substantial financial interest or (2) if that official has a substantial financial interest with a nominee for the appointment.

 

f. No official shall participate in, vote on, or attempt to influence the selection of an appointee to the Homer Advisory Planning Commission if that official has, or could reasonably be expected to have within one year after the date of the appointment:

 

1. A rezoning, quasi-judicial or platting action pending before the Commission; or

 

2. An application that would require approval by a quasi-judicial or platting action of the Commission.

 

In the case of the reappointment of an incumbent to another term, the prohibition above also applies to an official who had such a matter pending before the Homer Advisory Planning Commission within one year before the date of the reappointment. The Board of Ethics may, upon written request, grant an exception to this one-year period when it determines the public interest does not require continuing enforcement of the prohibition.

 

g. Use of Office for Personal Gain. No City official or the City Manager shall seek office or position or use their office or position for the purpose of obtaining anything of value for themselves, an immediate family member or a business that they own or in which they hold an interest, or for the purpose of influencing any matter in which they have a financial interest. This subsection does not prohibit the receipt of authorized remuneration for the office or position.

 

h. Inappropriate Use of Office Title or Authority. No City official or the City Manager shall use the implied authority of office or position for the purposes of unduly influencing the decisions of others, or promoting a personal interest within the community. City officials and the City Manager will refrain from using their title except when duly representing the City in an authorized capacity. Unless duly appointed by the Mayor or Council to represent the interests of the full Council, Council members shall refrain from implying their representation of the whole by the use of their title.

 

i. Representing Private Interests. No City official shall, for compensation, represent or assist those representing private business or personal interests before the City Council, administration, or any City board, commission or agency. Nothing herein shall prevent an official from making verbal or written inquiries on behalf of constituents or the general public to elements of City government or from requesting explanations or additional information on behalf of such constituents. No official may solicit or accept a benefit or anything of value from any person for having performed this service.

 

j. Confidential Information. No City official or the City Manager may disclose information they know to be confidential concerning employees of the City, City property, City government, or other City affairs, including but not limited to confidential information disclosed during an executive session, unless authorized or required by law to do so.

 

k. Outside Activities. A City official or the City Manager may not engage in business or accept employment with, or render services for, a person other than the City or hold any office or position where that activity, office, or position is incompatible with the proper discharge of the official’s or City Manager’s City duties or would tend to impair the official’s or the City Manager’s independence of judgment in performing City duties. This prohibition shall include but not be limited to the following activities:

 

1. A person who holds an appointed City office on a board or commission shall not be eligible for employment with the City in the department related to the board or commission during the official’s term of office and until one year has elapsed following the period of service. An exception may be made on a case-by-case basis with the express authorization of the City Council.

 

2. A person who holds or has held an elective City office shall not be eligible for appointment to an office or for employment with the City during the official’s period of service and until one year has elapsed following the period of service. An exception may be made on a case-by-case basis with the express authorization of the City Council.

 

l. Gratuities. No City official or the City Manager shall accept a gratuity from any person engaging in business with the City or having a financial interest in a decision pending with the City. No City official or the City Manager shall give a gratuity to another City official for the purpose of influencing that person’s opinion, judgment, action, decision or exercise of discretion as a City official. This subsection does not prohibit accepting:

 

1. A meal of reasonable value;

 

2. Discounts or prizes that are generally available to the public or large sections thereof;

 

3. Gifts presented by an employer to its employees in recognition of meritorious service, or civic or public awards;

 

4. A lawful campaign contribution made to a candidate for public office;

 

5. An occasional nonpecuniary gift insignificant in value;

 

6. Any gift which would have been offered or given to them if they were not a City official or the City Manager.

 

m. Use of City Property. No City official, the City Manager, or City hired consultant or contractor may use, request or permit the use of City vehicles, equipment, materials or property for any non-City purpose, including but not limited to private financial gain, unless that use is available to the general public on the same terms or unless specifically authorized by the City Council. This subsection does not prohibit de minimis personal use.

 

n. Political Activities – Limitations of Individuals. A City official may not take an active part in a political campaign or other political activity when on duty. Nothing herein shall be construed as preventing such officials from exercising their voting franchise, contributing to a campaign or candidate of their choice, or expressing their political views when not on duty or otherwise conspicuously representing the City.

 

o. Influencing Another City Official’s Vote. A City official may not attempt to influence another City official’s vote or position on a particular item through contact with the City official’s employer or by threatening financial harm to another City official.

 

p. City officials or the City Manager shall not participate in public testimony before any City body in any matter in which they have a substantial financial interest unless:

 

1. They or the City is the applicant; or

 

2. They fully and publicly disclose the nature of their interest in the subject of the action.

 

q. No City official may violate HCC 2.04.030.

 

r. City officials shall act impartially when conducting City business. 

 

s. At all times during performance of their official duties, Council members shall comply with the City's workplace safety policies, harassment prevention, and respectful workplace polices as set forth in the employee policy manual.

 

Section 3. Homer City Code Section 1.18.050 entitled “Procedures for violation reporting” is repealed.

 

Section 4.  Homer City Code Section 1.18.060 entitled “Advisory opinions” is amended to read as follows:

 

a. Where any City official or the City Manager has a doubt as to the applicability of any provision of this chapter to a particular situation, or as to the definition of terms used herein, he may apply in writing to the City Attorney for an advisory opinion. The City official or City Manager shall have the opportunity to present his interpretation of the facts at issue and of the applicability of provisions of the chapter before such advisory opinion is made. The request must clearly state it is a request for an advisory opinion under this section of the ethics code.

 

b. Such opinion, until amended or revoked, shall be binding on the City in any subsequent actions concerning the public official who sought the opinion and acted on it in good faith, unless material facts were omitted or misstated in the request for the advisory opinion. An advisory opinion shall be applicable and binding only to the particular set of facts and instances of conduct for which it was requested and shall have no force or effect for purposes of general application. Such opinion shall not be binding or admissible in evidence in any action initiated by any private citizen.

 

c. Any act or omission taken by any City Official or the City Manager in their official capacity based upon the advice of the City Attorney provided in writing, during a Councilor Commission meeting or acknowledged by the City Attorney in response to a complaint shall not be subject to an ethics complaint under Chapter 1.18 HCC.

 

Section 5.  Homer City Code Chapter 1.19 entitled “Board of Ethics- complaints” is enacted to read as follows:

 

Sections:

1.19.010             Board of Ethics established – General provisions.

1.19.020             Function and authority.

1.19.030             Procedures for violation reporting.

1.19.040             Confidentiality – Initial review.

1.19.050             Disclosure of complaint of potential violation prohibited.

1.19.060             Conduct of investigation and standard of proof.

1.19.070             Deliberations of the Board.

1.19.080             Decisions on the record.

1.19.090             Timely completion.   

1.19.100             Sanctions, civil penalties and remedies.

1.19.110             Board member and hearing officer disclosures.

1.19.120             Duty of cooperation.

1.19.130             Settlement of complaints.

1.19.140             Record of proceedings and public record.

1.19.150             Limitation period.

 

1.19.010 Board of Ethics established – General provisions.

 

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.  If no quorum of the Board can be established due to conflicts of interest or other cause of recusal, the present members of the Board shall direct the clerk to transfer the complaint to a hearing officer.

 

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 section 1.19.030(d) 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. Except as otherwise provided in section 1.19.030, the designated hearing officer shall be the sole decision-maker and shall comply with the procedures and requirements of this chapter.

 

 

1.19.020 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.

 

1.19.030 Procedures for violation reporting.

 

a. Any person who believes that a violation of any portion of chapter 1.18 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 chapter 1.18 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 reviewed in accordance with section 1.19.040. Except as otherwise provided in section 1.19.040, the Board of Ethics shall have 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.  Except as provided in section 1.19.040, the hearing officer shall have sole jurisdiction to decide the merits of a complaint under this chapter. 

 

1.19.040 Confidentiality- Initial review

 

 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, City Attorney, 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 City Clerk shall review the complaint for completeness and inclusion of the information required in HCC 1.19.030(b). If the City Clerk determines that the complaint is not complete and lacks information required by 1.19.030(b), the City Clerk shall return the complaint and identify in writing the deficiencies on which the return is based. The City Clerk shall notify the complainant of the return and the reasons for it.  A person may amend and re-file a complaint but a complaint filed by the same complainant with the same deficiencies shall not be accepted. The City Clerk 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.

 

 The City Attorney shall review the sufficiency of the statement of violation in the complaint.  If the City Attorney 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 City Attorney shall instruct the City Clerk to return the complaint and identify in writing the deficiencies on which the return is based.  The City Clerk shall notify the complainant of the return and the reasons for it.  A person may amend and re-file a complaint but a complaint filed by the same complainant with the same deficiencies shall not be accepted. The City Clerk 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.

 

 If the City Attorney determines the allegations in a complaint of potential violation, if proven, may constitute a violation of a matter within the Board or hearing officer’s jurisdiction, the City Attorney shall provide written notice to the City Clerk.

 

 If the City Attorney and City Clerk find the complaint sufficient under this section, the City Clerk shall: 

 

 Retain a hearing officer as required under section 1.19.030(d) and provide that officer with a copy of the complaint of potential violation, a copy of the outline of the hearing officer 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; or

 

 Provide the Board with a copy of the complaint of potential violation, 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;

 

 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

 

 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.

 

1.19.050  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:

 

a. The respondent elects to proceed in public; or

 

b. 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.

 

1.19.060 Conduct of investigation and standard of proof.

 

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.

 

 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.

 

 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.

 

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

 

 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.

 

 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.

 

 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.

 

 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.

 

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

 

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

 

 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.

 

1.19.070 Deliberations of the Board.

 

Deliberations of the Board shall be conducted in executive session.

 

a. The deliberations of the Board shall not be recorded.

 

b. The respondent, the person filing the complaint, and their counsel shall be excluded from the deliberations. The Board’s legal counsel may attend the deliberations.

 

c. The Board shall reconvene in open session when deliberations are complete.

 

1.19.080 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 HCC 1.19.110.

 

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.

 

1.19.090 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.

 

1.19.100 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.

 

1.19.110 Board member and hearing officer disclosures.

 

a. 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.

 

b. 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 10 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.

 

1.19.120 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 1.19.110. 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.

 

1.19.130 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.

 

1.19.140 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.

 

1.19.150 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 6.  Homer City Code Chapter 2.80 entitled Board of Ethics is repealed.

 

Section 7.  This ordinance shall take effect upon its adoption by the Homer City Council.

 

Section 8. This ordinance is of a permanent and general character and shall be included in the City Code.

 

ENACTED BY THE CITY COUNCIL OF THE CITY OF HOMER THIS __ DAY OF ___________, 2018.

 

CITY OF HOMER

 

                                                                                                                                                                                                                                                                                                                                _______________________

                                                                                                                                                                                                                BRYAN ZAK, MAYOR
 

ATTEST:

 

 

______________________________

MELISSA JACOBSEN, MMC, CITY CLERK

 

 

YES:

NO:

ABSTAIN:

ABSENT:

 

First Reading:

Public Hearing:

Second Reading:

Effective Date:

 

Reviewed and approved as to form:

 

__________________________                                                                                                                         _________________________

Katie Koester, City Manager                                                                                        Holly Wells, City Attorney

Date: _______________                                                                                                       Date: _______________