Bold and underlined is almost verbatim Anchorage City Code

 

CITY OF HOMER

HOMER, ALASKA

Roberts

ORDINANCE 08-23

 

AN ORDINANCE OF THE CITY COUNCIL OF HOMER, ALASKA, CREATING AN APPOINTED BOARD OF ETHICS IN THE HOMER CITY CODE SECTION 1.79.

 

            WHEREAS, The City Council of Homer, Alaska holds the trust and respect of its citizens in highest regard and wishes to establish an appointed Board of Ethics to oversee determination of ethics violations; and

 

            WHEREAS, The appointed Board of Ethics would eliminate any bias or conflict of the City Council in determining ethics violations and have the same duties and responsibilities as currently mandated in Homer City Code 1.18, including reporting its findings to the Homer City Council for action.

 

            NOW, THEREFORE, THE CITY OF HOMER ORDAINS:

 

            Section 1. A new chapter of the Homer City Code, Chapter 1.79, entitled Board of Ethics, is hereby enacted to read as follows:

 

Chapter 1.79

BOARD OF ETHICS

Sections:

1.79.010 Board of ethics established general provisions.

1.79.020 Terms of Board members.

1.79.030 Function and Authority.

1.79.040 Meeting Schedule

1.79.045 Confidentiality during investigation and deliberative process.

1.79.047 Disclosure of complaint of potential violation prohibited

1.79.050 Conduct of investigation and standard of proof. 

1.79.055 Deliberations of the board.

1.79.060 Hearings on Complaints of Violations.

1.79.065 Decisions on the record. 

1.79.070 Sanctions, civil penalties and remedies.

1.79.075 Findings and recommendations to the City Council

1.79.080 Record of proceedings and public record.


1.79.010 Board of ethics established – general provisions.

 

a.  There is hereby established a Board of Ethics.

 

b.  The Board shall be comprised of five members.  No more than one of its members may reside outside the City limits. Members shall be appointed by the Mayor subject to confirmation by the City Council. 

 

c.  A chairperson and vice-chairperson of the Board shall be selected annually from and by the appointive members. The chairperson will preside over the meetings. In absence of the chairperson the vice chairperson will preside.

 

d.  Any city manager appointed attorney shall serve as a consulting member of the Board in addition to the five members, but shall have no vote.  

 

e.  A quorum of the Board shall be three. 

 

f.  Decisions of the Board shall be adopted by a majority of a quorum.

 

g.  Unless the Board delegates such authority to another member or decides that no one shall have such authority, the chairperson 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.

 

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

 

1.79.020 Terms of Board members.  Members of the Board shall serve for three year terms.  Initial appointments will be staggered as follows:  two three-year terms; two two-year terms; and one one-year term.  A person appointed to fill a vacancy shall serve the remainder of the term of the vacancy.  

 

1.79.030 Function and authority.

 

The Board of Ethics has authority to perform the following functions:

 

a. Investigate reported violations of Chapter 1.18.

b. Hear and decide written complaints of violations of Chapter 1.18 as provided in this chapter. 

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

d. Make findings and recommendations to the City Council or city supervisors concerning sanctions, civil penalties and remedies for violations as provided in the code. 

e. Make recommendations to the City Council for changes to Chapter 1.18 and this chapter.

f. Adopt recommended policies and procedures governing the board’s conduct of business, subject to prior approval of the City Council by resolution. 

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

h. Administer oaths and receive testimony from witnesses appearing before the board

i. Request city agencies to cooperate with the board in the exercise of the board's jurisdiction

j. Request the advising attorney to seek assistance of the superior court to enforce the board's subpoena

k.  Conduct investigative hearings in executive session, pursuant to notifications alleging violations of matters within the authority of the board.

 

1.79.040 Meeting Schedule.

 

a.  For business unrelated to a written complaint of violation of HCC 1.18 the board shall meet semiannually. At the discretion of the board, special meetings may be scheduled and held. 

b.  The board shall meet within 14 days from notice by the clerk’s office of receipt of a written complaint of a violation of HCC 1.18.

c.  Additional meetings necessary to conduct hearings and decide complaints will be scheduled as needed until completion. 

 

1.79.045 Confidentiality during investigation and deliberative process.

 

a.  Each written complaint forwarded from the city clerk’s office of potential violation shall be assigned an identification number to maintain confidentiality. The board shall keep all written complaints of potential violation confidential during investigation and the board'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, members of the board, and legal counsel. Upon receipt of a notification of potential violation, the board shall, at its next scheduled meeting or earlier, as determined by the board chair, review the complaint of potential violation in executive session and determine if further action on the notification of potential violation is warranted. 

b.   If the board determines the facts alleged in the notification of potential violation, even if proven, do not constitute a violation, or that the board lacks jurisdiction to address the complaint of potential violation, the board 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 determines the allegation in a complaint of potential violation, if proven, may constitute a violation of a matter within the board's jurisdiction, the board shall:

1.  Request and receive from the city administration legal council to assist the board in all further deliberative processes, investigations and reports.  

            2.  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/or bring legal counsel; and

            3.  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, present documentary or testimonial evidence, and assist the board in resolving the potential violation.

 

1.79.047  Disclosure of complaint of potential violation prohibited. 

 

a.  A complaint of potential violation filed under this chapter is confidential until the board completes a written report for distribution as a public record.

            1.   No person 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, unless:

i.   The respondent elects to proceed in public; or

ii.  The written report of the board is electronically published by the municipal clerk.

2.   Breach of confidentiality under this subsection is a violation of this chapter.

            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 finds probable cause to believe that the person filing the notice of complaint violation has violated confidentiality under this chapter, the board shall immediately dismiss the complaint of violation. Dismissal under this subsection does not affect the right of the board or another person to initiate a proceeding on the same factual allegations by filing a complaint of potential violation.

            4.   Public disclosure resulting from electronic publication by the city clerk under this chapter or the imposition of a sanction or corrective action under this chapter is not a violation of this subsection.

 

1.79.050   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. 

1.   The respondent and the person who filed the complaint of potential violation may identify other individuals and documents that each would like the board to interview and review.

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

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

4.   The board may question the respondent, the person who filed the complaint of potential violation, and other persons appearing before the board.

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

6.   The standard of proof to be applied by the board 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 finding of a violation of this chapter must be supported by substantial evidence.

9.   The board's findings shall not be binding in a subsequent sanctions proceeding.

10.  When the board's investigation is conducted in executive session, the public shall be excluded and the session shall be electronically recorded. The recording shall be available for access as a public record after publication by the city clerk of the proposed resolution and settlement under subsection 1.79.070.

 

1.79.055  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 board shall reconvene in open session when deliberations are complete.

 

 

1.79.060 Hearings on Complaints of Violations.  The Board will follow these procedures concerning written complaints of violations of the Ethics Code, HCC 1.18:

 

a. The Board will make the initial determination of the validity of a complaint within 14 days after receipt of the complaint.  This initial determination will only be whether the complaint is properly completed and contains allegations that, if true, would constitute a violation of chapter 1.18. No investigation of facts and no evidentiary hearings will be conducted prior to making this determination. The time for making an initial determination of validity may be extended for good cause shown.

b.  If the Board determines the complaint is not valid, it may recommend to the council to dismiss the complaint or recommend to the person filing the complaint that it be amended and refiled.

b.  If the Board determines the complaint is valid, it, with the assistance of the appointed attorney hold one or more hearings to determine whether the respondent named in the complaint has violated the provisions of HCC 1.18. The complainant and the respondent shall be provided reasonable notice and an opportunity to present evidence and cross-examine witnesses. The hearing will be informal and technical rules of evidence do not apply.  The Board may receive any relevant and reliable evidence.  A hearing conducted and any determination made under the authority of this section are independent of and may be in addition to any prosecution in court under criminal procedures.

c.  When a hearing is convened to determine whether the respondent has violated this chapter, 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.  

 

d.  A city official or city employee 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 recommendation of disciplinary action under 1.76.060. For the purposes of this subsection, 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 subsection shall prevent the rescheduling of a hearing for cause upon request of the official or employee.

e.  Once a hearing has been completed the board shall present written recommended findings to the City Council. Recommendations shall include any proposed sanctions, civil penalties, or remedies allowed under 1.79.070.

f.  Timely completion.  The board shall complete action on complaints of potential violation and investigations within 90 days of the filing of the complaints of potential violation. By a majority vote, the board may extend the completion date for up to an additional 90 days. 

 

1.79.065   Decisions on the record.

 

a. Using the identification number of the complaint of potential violation to protect confidentiality, the board shall vote in open session on these questions: 

1.   Whether the board finds by a preponderance of the evidence one or more violations within the jurisdiction of the board; and

2.   Whether the board recommends further administrative or remedial actions; and

3.   What specific sanctions, corrective actions or referrals, if any, the board recommends pursuant to 1.79.070.

4.   If the board does not find a violation under this chapter, the board 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 in whole or in part, and the date of board closure. At the sole discretion of the respondent, the board may release the statement of closure as a public document.

 

1.79.070 Sanctions, civil penalties and remedies.

 

a. Upon conviction for any violation of this chapter under criminal procedures or upon a determination of any violation of this chapter after a hearing pursuant to this section by the board it may recommend the following:

 

            1. If the respondent is a city official or the city manager, the Board of Ethics shall recommend as a sanction, penalty or remedy any or all of the following, as appropriate to the seriousness of the violation.

 

i.  The office of a City Council member may be declared vacant for a serious violation that is (i) flagrant or (ii) willful and knowing. The office of the mayor be declared vacant only if the violation justifies a declaration of vacancy under AS 29.20.280.

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

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

iv.   The official may be ordered to refrain from voting, deliberating, or participating in any matter in violation of this chapter.

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

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

            vii.  A contract, or 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 may be voided.

viii. The Board of Ethics may recommend that the official to forfeit or make restitution of any financial benefit received as a consequence of a violation of chapter 1.18.  

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

 

2.  If the respondent is a city employee, the board shall recommend to the employee’s supervisor imposition of any or all of the recommended sanctions, penalties and remedies specified in chapter seven of the City of Homer Personal Regulations.

 

1.79.075 Findings and recommendations to the City Council or supervisor. The Board of Ethics' recommended findings and recommended sanctions, civil penalties, and remedies, if any, shall be forwarded to the City Council or supervisor for final action.  The City Council may shall adopt, with or without modifications, or reject the recommended findings of the Board of Ethics, and may impose such sanctions, civil penalties, and remedies, if any, that it finds appropriate after taking into consideration the recommendations of the Board.  The decision of the City Council or supervisor is final and not subject to appeal on the merits.

1.79.080 Record of proceedings and public record. 

            a. Permanent records and minutes shall be kept of Board’s proceedings. Such minutes shall record the vote of each member upon every question. 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 or supervisor at the earliest possible date.

            Section 2.  Section 1 of this ordinance is of a permanent nature and shall be included in the City Code.

            ENACTED BY THE CITY COUNCIL OF THE CITY OF HOMER, ALASKA, this _____ day of _______________________, 2008.

 

                                                                        CITY OF HOMER



                                                                                                                        _____

                                                                        JAMES C. HORNADAY, MAYOR

ATTEST:


                                                           

JO JOHNSON, CMC, CITY CLERK

 

AYES:

NOES:

ABSTAIN:

ABSENT:

 

First Reading:

Public Reading:

Second Reading:

Effective Date:

 

Reviewed and approved as to form:

 

 

                                                                                                                                               
Walt Wrede, City Manager                                                       Gordon J. Tans, City Attorney

 

Date: _________________________                                     Date:  ___________________