Bold and underlined is almost verbatim
HOMER,
Roberts
ORDINANCE 08-23
AN ORDINANCE OF THE
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.
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
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
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,
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 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
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
_____
JAMES
C. HORNADAY, MAYOR
ATTEST:
JO JOHNSON,
AYES:
NOES:
ABSTAIN:
ABSENT:
First
Public
Second
Effective Date:
Reviewed and approved as to form:
Walt Wrede, City Manager Gordon
J. Tans, City Attorney
Date: _________________________ Date: ___________________