HOMER,
Roberts
ORDINANCE 08-24(S-2)(A)
AN ORDINANCE OF THE
WHEREAS,
The City Council of Homer, Alaska, holds the trust and respect of its citizens
in highest regard, recognizing that the citizens’ determination of the council
and commissions ethical behavior relies heavily upon members while they are
acting within the scope of authority and responsibility bestowed upon them; and
WHEREAS,
WHEREAS,Elected
city officials, appointed commissioners and the city manager may be called upon
to make decisions that are intertwined with their private business dealings and
need further guidance to know when they must refrain from participating in decision
making in such matters.
Section
1. Homer City Code Chapter 1.18 and 1.12
is repealed and reenacted to read as follows:
Chapter 1.18
CONFLICTS OF INTEREST, PARTIALITY
CODE OF ETHICS
Sections:
1.18.010 Purpose.
1.18.020 Definitions.
1.18.025 Scope and
Duration.
1.18.030 Standards and Prohibited acts.
1.18.040 Business dealings with city.
1.18.043 Public Disclosure
1.18.045 Procedure for declaring conflicts
1.18.045 Procedure
for declaring potential conflicts conflict of interest-city offi- cials.
1.18.047 Procedure
for declaring potential conflicts conflict of interest-City Man- ager.
1.18.048 Procedure
for declaring and ruling on partiality in quasi-judicial matters.
1.18.050 Procedures
for violation reporting.
1.18.060 Advisory opinions.
1.18.070 Violation and penalty.
1.18.090 Distribution of Code
1.18.100 Application of State Statutes.
a. The proper
functioning of democratic government requires ethical behavior by public officials.
Ethics involves the commitment to take individual responsibility in creating a
government that has the trust and respect of its citizens. The purpose of this
chapter is to set reasonable standards of conduct for city officials and the
city manager so that the public may be assured that its trust in such persons
is well placed and that the city officials and the city manager themselves are
aware of the standards of conduct demanded.
b. However,
recognizing that Homer is a small community, with a limited number of people
interested in serving as community leaders, it is not the intent of this
chapter to set unreasonable barriers that will serve only to deter aspirants
from public service.
c. This
chapter also defines conflict of interest and partiality, the standards stating
when and to whom it applies, and the procedures for declaration and the proper
action of the body when possible conflicts and partiality arise.
d. This
chapter is also intended to establish a process which will ensure that complaints
or inquiries regarding the conduct of city officials and the city manager are
resolved in the shortest practicable time in order to protect the rights of the
public at large and the rights of the city and the city manager.
e. The
City Council intends this code to be interpreted to promote fair, honest, and
impartial dealings with members of the public, to ensure proper use of city
resources, and to avoid conflicts of interest.
f. This chapter does not create
or prevent a private cause of action against any person, city official, or the city manager.
1.18.020 Definitions. 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:
a. “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.
b. “Body of
the city” means the City Council and the boards, commissions, committees and
task forces appointed by the City Council or the Mayor.
c. “City manager” means the person who is hired by the City
Council to manage the City of
d. "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.
e. ”Financial interest" means:
1. an interest currently held by that person or an immediate
family member including:
i.)involvement or ownership in a
business or,
ii.)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
iii.) an affiliation with an organization in which the
person holds a position of management, or is an officer, director, trustee,
employee, or the like; or
iv.) financial affiliations with
other specific businesses, or individuals in which your financial interests
have collaborated for mutual financial benefit within a one year period.
2. financial
interests does not include:
i.) affiliation as unpaid volunteer with a legally
recognized non-profit organization or,
ii.) financial interests of a type which are generally
possessed in common with all other citizens or a large class of citizens.
f. “Gratuity”
means a thing having value given voluntarily or beyond lawful obligation.
g. “Hired
consultants and contractors” means a person or organization hired by the city
as an independent contractor and not as an employee.
h. "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.
i. “Large
class of citizens” includes:
1. A
number of citizens larger than 10% of the current population of the city.
2. All
citizens residing in a zoning district which is subject, in its entirety, to an
official action.
3. All
citizens residing in an area where an official action directly affects more
than 20 twenty contiguous parcels as the subject of the official action.
4. means a Other substantially large groups 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:
a. A single profession, regardless of the
number of persons.
b. An individual business or organization
regardless of the number of citizens it contains.
j. "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.
k. "Organization"
means any business, corporation, partnership, firm, company, trust,
association, or other entity, whether organized for profit or non-profit. An organization is a person.
l. "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:
(i) the
member has a personal bias or prejudice for or against a party to the proceeding
including a party's lawyer;
(ii)
the member or an immediate family member is a party, material witness to the
proceeding or represents a party in the proceeding.(iii)
the member or an immediate family member currently represents a party in the
proceeding or any other currently pending proceeding before the body.
m. “Person”
means a natural person or an organization.
nm. “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.
n. “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.
o. "Substantial financial interest” means a financial
interest that would result in a pecuniary gain or loss exceeding $1000 in a single transaction or more than $5000 in the
aggregate in 12 consecutive months.
1.18.025 Scope and Duration.
a. Except as otherwise provided in this chapter, this chapter
applies to the conduct of city officials and the City Manager.
b. Enforcement
proceedings may be commenced and continue to completion after a person is no
longer a city official or and the City Manager for conduct that occurred
during the time the person was serving or engaged in such a capacity for the
city.
1.18.030 Standards and Prohibited Acts.
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 actiondeliberately presented as being true.
b. Official
Action. No City official or the City
Manager shall participate in any official actions
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 for a
period of one year before or after the action the person has, had or will have a substantial financial
interest with the applicant or a substantial financial
interest in the subject of the official action.
3. the person resides or,
owns land, or has a substantial financial interest with
a person who resides or owns land within a three-hundred 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:
i.) This
subsection does not prohibit a person from acquiring a substantial financial
interest in the subject of the action after the longer of twelve months after
the official action is approved, or twelve months after the person's term or
employment ends.
ii.) 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.
iii.) 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 three -hundred
feet foot from the periphery of any property that is
the subject of any action.
c. City officials and the City Manager acting in the course
of their official duties are allowed to participate in official actions:
1.) 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
(i) having authority to take official action on any pending matter or application
in which that official has a substantial financial interest or (ii) 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 before or after the date of the appointment, that official had, has or could reasonably be expected to
have:
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 to
obtain for the purpose of obtaining,
anything of value for himself, an his immediate
family member or
a business that he owns or in which he holds an interest, or for the purpose of influencing any matter
in which he has 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,
elected or appointed 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, councilmembers 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 Manger or City may disclose information he or she knows
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 Manger 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 employers
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 non-pecuniary gift
insignificant in value;
6. Any gift which would have been offered
or given to him if he 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 a 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 are the applicant, or
2.) they fully and publicly disclose the nature of their
interest in the subject of the action.
1.18.040 Business dealings with city.
a. Not less than ten days before the
date when official action may be taken by the council or by any officer, the
City Manager, commission or other agency of the city upon business dealings between Before the city and a city official or an
organization in which the city
official has a substantial financial interest, is
paid to do business with the city, the city official person
shall file a statement
with the city clerk. The statement shall set forth the nature of such business
dealings and the city
official’s ir interest therein.
This statement is only required when the person receives a beneficial
substantial financial interest. The statement is due not less than ten days before the date
when official action may be taken by the council or by any officer, the City
Manager, commission or other agency of the city upon the matter involved. If
all other provisions of this chapter are complied with, the statement shall be
sufficient for continuing transactions of a similar or like nature for one year
from the date of its filing. However, if an official has violated any of the
provisions of this chapter, he shall be precluded from engaging in business
with the city on that particular matter for one year.
b. Upon taking office or upon
subsequently acquiring the interest, an official shall, within ten days,
file with the city clerk a statement disclosing any substantial financial
interests of the official or the City Manager in any existing business with the
city, including those of any organization in which the official or the City
Manager has a substantial financial interest.
c. The City Manager shall not engage
in business with the city outside their
duties ofas City Mmanager.
1.18.043
Public Disclosure.
a.
Each city official and City Manager must annually file a Financial Interest
Disclosure Statement using forms substantially the same as the following
selected schedules from the Alaska Public Offices Commission Public Official
Financial Disclosure Statement: Schedules B (business interests), C (real
property interests / rent to own), E (the portion relating to natural resource
leases only), F (government contracts and leases) and G (close economic associations).
The City Clerk shall provide the forms to each city official. The City
Clerk may make such alterations to the forms as may be necessary.
b. The Financial Interest Disclosure Statement must be
filed by November 1 each year. A newly appointed official must file a
statement within 30 days after
of taking office. Each
candidate for elected city office must file a disclosure statement at the time
he or she files a declaration of candidacy, except an incumbent seeking reelection
with a current disclosure statement on file. Refusal or failure of a
candidate to file the required disclosure statement before the end of the time
period for filing declarations of candidacy shall require that the candidate's
declaration of candidacy be rejected and the candidate disqualified.
c. The disclosure statement must be true, correct and
complete and shall be signed under oath or affirmation, or certified to be true
under penalty of perjury. Not filing a statement within the stipulated period
is a violation of this chapter.
d. The
disclosure statement shall be filed with the city clerk and shall be open to public inspection and copying at the
office of the city clerk. The disclosure statement will not be sent to
the Alaska Public Offices Commission.
1.18.045
Procedure for declaring potential conflict of interest-city officials.
a. A city
official who has or may have a substantial financial interest in an official
action shall disclose the facts concerning thate
official's financial interests to the body of the city of which the official is a member prior
to the body taking any official action. Any member of the body may raise a
question concerning another member's financial interests, in which case the
member in question shall disclose relevant facts concerning the official's
financial interests in the subject of the action.
b. If the
official is a city council member, the official may
excuse themselves without a vote for conflict of interest, otherwise the
mayor, or the mayor pro tem in the absence of the mayor, shall rule on whether
the council member must be excused from participation or must vote. The ruling may be immediately overridden by a
majority vote of the city council. There
is no appeal from the action or inaction of the city council to override or not
override the ruling of the mayor.
c. If the official
is not a city council member, the official may excuse themselves without a vote
for conflict of interest, otherwise the board, commission, or other body of
which the official is a member shall by majority vote rule on whether the
member must be excused from participation, which must be the ruling when the
body determines the official has a substantial financial interest in the official
action. There is no appeal from the
ruling of the body.
d. The official
shall abide by the ruling. If the official is not a city
council member, the
The ruling applies (without
the need for further disclosures and rulings) to all subsequent occasions on
which the same official action comes before the same body, unless there has
been a material change of circumstances.
On each such subsequent occasion, the presiding officer shall note for
the minutes that the ruling previously made continues in effect.
e. An official who
is ruled to be excused from participation shall leave the official table and
not vote, debate, testify, or otherwise take part in the official action,
except an official who is an applicant may testify on his or her own behalf
from the public testimony area.
f. Rule of necessity; Exceptions to a ruling excusing a
member from participation shall be made in cases where
(1) by
reason of being excused for conflicts of interest the number of members of the
council or other body eligible to vote is reduced to less than the minimum
number required to approve the official action,
(2) no
other body of the city has jurisdiction and authority to take the official action
on the matter, and
(3) the
official action cannot be set aside to a later date, within a reasonable time,
when the body could obtain the minimum number of members to take action who are
not excused for conflicts of interest.
When
the body determines this exception applies, then all members, except the
applicant when the applicant is a member of the body, shall participate in the
official action.
1.18.047
Procedure for declaring potential conflicts of interest – City Manager.
1.18.048 Procedure for declaring and ruling on partiality
in quasi-judicial matters.
a. A city
official or the City Manger who has partiality concerning a quasi-judicial
matter shall not advise on matter, adjudicate the matter or serve as a member
of a body adjudicating the matter.
b. A city official
who is a member of a quasi-judicial body and who has or may have partiality
concerning a matter to be adjudicated shall disclose the facts concerning the
official's possible partiality to the body to the parties to the matter prior to
the commencement of proceedings by the body.
Any member of the body,
and any party to a matter before the body, may raise a question
concerning a another member's partiality, in which case the
member in question shall disclose facts concerning the official's possible
partiality in the matter.
c. After such
disclosure, the city official may excuse themselves for partiality without a
vote of the body, otherwise the body (including a body comprised of city
council members when serving in a quasi-judicial capacity) shall by majority
vote, rule on whether the member must be excused from participation, which must
be the ruling when the body determines the official has partiality concerning
the matter.
d. Rule of necessity; Exceptions to a ruling excusing a
member from participation shall be made in cases where
(1) by
reason of being excused for partiality
conflicts of interest the
number of members of the council or other body eligible to vote is reduced to
less than the minimum number required to approve the official action,
(2) no
other body of the city has jurisdiction and authority to take the official action
on the matter, and
(3) the
official action cannot be set aside to a later date, within a reasonable time,
when the body could obtain the minimum number of members to take action who are
not excused for partiality conflicts of interest.
When
the body determines this exception applies, then all members, except the
applicant when the applicant is a member of the body, shall participate in the
official action.
e. The City Manger
who has or may have partiality concerning a quasi-judicial matter over which
the manager has decision-making authority shall either (i) appoint another city
employee to make the decision or (ii) disclose the facts concerning the
possible partiality to the City Council and to the parties to the matter prior
to taking any official action . If
referred to the City Council and the City Council determines the manager has
partiality concerning the matter, the City Council shall excuse the Manager and
cause another city employee to be assigned to decide the matter.
1.18.050 Procedures for violation
reporting.
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. However,
nothing in this chapter shall be construed to prevent complainants from instituting
other legal actions through the appropriate judicial authority.
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, 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 are 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 City
Council serving as the Board of Ethics under Chapter 1.79for
action and shall remain confidential. The Board of Ethics has sole
jurisdiction to decide the merits of the complaint filed under this chapter, excluding criminal complaints.
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. (Ord. 06-68(S)(A), 2007)
1.18.070 Violation
and penalty. Any official who violates any of the provisions of this
chapter shall be guilty of a violation subject to punishment pursuant to
1.18.090 Distribution of Code. The city clerk shall cause a copy of this chapter to be distributed
to each city official elected or appointed before entering upon the duties of
his office and to the City Manager upon
employment.
1.18.100 Application of state statutes.
a. Nothing in this
chapter is intended to curtail, modify, or otherwise circumvent the application
of the Alaska Statutes to any conduct involving bribery or other offenses
against public administration.
b. All municipal officers as defined by Alaska
Statutes Chapter 39.50 are exempt from the provisions of AS 39.50 relating to
conflicts of interest or financial disclosures.
Section 2. Homer City Code Chapter 1.12 is
repealed.
Section 3. This ordinance is of a permanent and
general character 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 Thomas
F. Klinkner, City Attorney
Date: _______________________ Date: __________________________