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HomeMy WebLinkAbout1995-05-22 95-234 ORDINANCECOUNCIL ACTION Item No. 95-230 Date May 22 1995 Item/Subject: Amending Chapter I, Article 6 of the Laws and Ordinances of the City of Bangor -- Code of Ethics Responsible Department: Legal Commentary: Over the past several months, the Board of Ethics has been working on two major projects to revise its procedures and amend its governing ordinance. At its meeting on May 15, 1995, the Board adopted a set of procedural rules regulating the Board's conduct Of advisory opinions and violations hearings. The new procedural rules, which complement a proposed revision sion of the City's Code of Ethics, have been provided to the City Council under separate cover. The attached Council Ordinance incorporates the Board's comprehensive proposed revision of the City's Code of Ethics. This proposal was given final form and was approved by the Board of (cont'd on next page) ?').,"''rLI` Department Head Associated Informatlon:Qmyl474 Finance Director Legal Approval: `at City solicitor - Introduced For Passage First Reading Referral Je YA{Mi Ow Page I of 19 95-234 Ethics at its May 15th meeting, by a 6-0 vote, for recommendation to the City Council. As proposed by the Board, the Code of Ethics revisions would make a number of major changes to the current ordinance, as follows: (1) The revised sed Cade of Ethics would apply to all Boards, Committees, and Commissions created by the City Charter, or by an Ordinance, Order or Resolve of the City Council. This constitutes a major expansion of the present Code, which ascurrently in force applies only to the City Council, the Zoning Board of Appeals, the Planning Board, the Building Board of Appeals, and the Historic Preservation Commission. (2) Most provisions of the revised Code would also apply to all City of Bangor employees. Currently, no provision of the Code of Ethics applies directly to City employees. Under the revised Code, City employees would remain exempt from the requirementto file annual disclosure statements. Currently, only City Council members are required to file such statements, and this limitation has been preserved. The revised Code also expressly preserves procedures currently in force under the City's Personnel Rules and Regulations and Union contracts for disciplinary actions involving alleged ethical violations. However, under Section 5 0£ the revised Code, an employee's breach of the ethical standards set out in the Code i expressly made a grounds for employee discipline, up to and including termination of employment. (3) The revised Code contains extensive new provisions o ethics in contracting applicable to vendors, Contractors, and prospective vendors and contractors doing business or seeking to do business with the City. These provisions are largely modeled after ethics is contracting provisions of the American Bar Association's Model Procurement Code. The Council will recall that armilar ethics provisions were deleted from the City of Bangor's Procurement Policy when that policy w adopted in 1994, 90 as to allow for their future implementation by City ordinance. This is that ordinance. The revised Code's provisions on ethics in contracting also borrow somewhat from standard anti -kickback provisions incorporated in most federal contracts. (4) A ^blind trust" exception has been added in Section 2.5 to the current Code's definition of "financial interest.^ (5) Other changes make the Code of Ethics more gender -neutral, or ,are editorial in nature. The revisions mmended by the Board of Ethics would make the City's CodeofEthicsmore muscular and extensive i its application. I believe the revised Code would help to better protect the City against unethical conduct affecting public funds or the public interest. As does the Board of Ethics, I recommend your approval. 95-234 Assigned to Councilor Blanchette May 22, 1995 CITY OF BANGOR (TITLE.) (OrbilLM a, Amending Chapter. 1,,._nrt cls 6 of theLaws ....1......._ - and Ordinances of the City of Bangor -- Code of ethics Be it ordaiwd Ey the City CowyeB ofUw Ciy ofBanwr, w Mows. THAT Chapter 1, Article 6 of the Laws and ordinances of the City of Bangor, as previously amended, is hereby revised and amended to read in its entirety as follows; [attached] IN CITY COUNCIL 95-234 Bay 2,1995 Sending - ORDINANCE RvfetrA6,to municipal -Ope tt s.Co 't a C* ( TTf1E,) Amending Chanter I, Article 6 of the �. Laws and Ordinances of the City of Bango; - f. Code of Ethics Cl LER& IN CITY COUNCIL `F_ June 12, 1995 PassInt C�arWU Vest rizezed Councilors sea _ n Coudacci, Voting Yee: Y/Ay' EalQacci, Bldechette, Cohen. _. CaAc'Imw Frankel ppez, Soucy. Sul le 'd Woodcock - ' ITY C 95-234 CHAPTER I ARTICLE 6 - CODE OF ETHICS Sec. 1 Declaration of Policy. The proper operation of democratic government requires that City Councilor& and their appointees be fair, impartial and responsive to the needs of the people and each other in the performance of their respective functions and duties; that decisions and policy be made in proper channels of the City's governmental structure; that public office not be used simply for personal gain; and that seek City Employees, City Councilors and their City appointees maintain a standard of conduct that will inspire public confidence in the integrity of the City's government. In recognition of these goals, a Code of Ethics is hereby established for all City Employees. City Councilors, and members and associgLg members of aexisting hereafter created. ead9aesee}aEe-members-eE Eke-Befl}s§-Beard-e€-Appeals;-P}sewing-Beards-Bnildiag-Beard e€-Aggea}s-sad-Eqe-Hiaterie-PreservaE€ea-Ce�wni saiere: Sec. 2 Definitions: 2.1 Board: EeaiRq-Beard-a€-Appeals ;-Bei}ding-Beard-e€ Appea}s-aad-Planning-Heard. All statutory and boards haEgaf= created under the City harterf a al a 1 do d by the City Council, including n the following: Banair Cormration Board of Directors Bangor Recreation District Board Of Directogg Board of Assessment Review Board of Ethics Building Board of AnDgals Hersey Fund Board of Trustees Planning Board so n Pund Board of Trustees Superintanding School Committee zoning Board of Appeals 2.1.1 Board Member: Mem9er-er-aseeeiaEe-member-a€-the Beard-eBeard-eE-Aggea}aersocaning-Beard-er-Beishin Beard-a€-appea}e: aw elected to or appoint associateor p on a Person Cityd d LQ such a board by or under the authority f the Bangor i 2.1.2 Business: Any corporation, partnership, individual, sole proprietorship, joint venture, or any other legally recognized entity organized for the purposes of making profit. 2.2 City Councilor: Member of the Bangor City Council. 95-234 -2- 2.3 City Employee: Any individual working for, o a permanent or temporary basis, and drawing a as hourly wage a salary from the City of Bangor„ eepE-emp}eyeee-a€-Ehe-fishes}-BeparEmeaE. The term 'City Employee,, shall not include outside consultants or special Prcfessional personnel providing services to the Cityindependent ontractors under a written Professional services contract o ag other similar a eaten -a ahem-Eerm sex€raeEaa}_bas£s- All Committees, 2.3.1 commission: H£stexissnx-remm£ee£eb. Commiasions or Other lie bodies now existing or hereaftgr Created bV virtue ol ordinance. order or resolve adatted by the Bangor city council including, h limitation, th following, Baugor Housing Authority Commission Economic Development Advisory Commission Firearms Bimcharae Committee Harbor Committee Historic Preservation Commission N rsina Facility Advinory Committee Parks and Recreation Advisory Committee Recycling Commit 2.3.2 Commission Members Member-er-assee#ate-member nerthe-H£poiappointed - Ptroeemeembershipe or associate tAo membership Coumiaeioa By r Committee y o under [he doth r City l 2.4 Immediate Family: Spouse, and the following when living in the household of a City Employee city Councilor Eeaxe£}-Member, Board Member or Commission Member: children, parents, brothers and sisters. 2.5 Fipavcial interest A direct or indirect interest having monetary or pecuniary value, including, but not limited to, the ownership of shares of stock. A City Emcdovee, City Councilor, Board Member Commission member member f that immediate family who holds a financial interest s ac in a disclosed shall not be deemed to have a conflict f interest with regard to matters Pertaining to assets held by the trust. 2.6 Special Interest: A direct or indirect interest having value peculiar to a certain individual o group, whether economic or otherwise, which value may accrue to such individual or group as a result 95-234 -3- of the passage or denial of any order, ordinance or resolution or the approval or disapproval thereof, by the City Council, Board or Commission and which interest is not shared by the general public. 2.7 City Council. For purposes of this Code references to the City Council shall be construed to mean the City Council of the City of Bangor and any of the committees or subcommittees thereof. Sec. 3 Standards of Conduct. The purpose of this Code is to establish ethical standards of conduct for all city Employees. City Councilors, Board Members and Commission Members by setting forth those acts or actions deemed to be in conflict or incompatible, or to create the appearance of conflict or incompatibility, with the beet interests of the City of Bangor. 3.1 Statutory Standards. There are certain provisions of the general statutes of the State of Maine which should, while not set forth herein, be considered an integral part of this Ordinance. Accordingly, the provisions of the following sections of the general statutes of the State of Maine, as may be amended, e hereby incorporated by reference and made a part of this Code of Ethics, and shall apply to all City Employees. City Councilors, Board Members and Commission Members of the City of Bangor whenever applicable as if more fully set forth therein, to wit: 17 MRSA S 3104 Conflicts of Interest) Purchases by the State 17-A MRSA 8 456 Tampering with Public Records of Information 17-A MRSA 5 602 Bribery in Official and Political Matters 17-A FW SA 5 603 Improper Influence 17-A MRSA S 604 Improper Compensation for Past Action 17-A MRSA 5 605 Improper Gifts to Public Servants 17-A MRSA S 606 improper Compensation for Services 17-A MRSA S 607 Purchase of Public Office 17-A MRSA 5 608 Official Oppression 95-234 -4- 1]-A MRSA 4 609 Misuse of Information 17-A MRSA S 903 Misuse of Entrusted Property 21 MRSA 5 533 Persona Ineligible to Serve as Election Officials 30-A MRSA S 2605 Conflicts of Interest 30-A MRSA S 5122 Interest of Public Officials, Trustees or Employees 3.2 Contracts Purchases and employment. LL No City Employee City Councilor, Board Member or Commission Member shall participate directly by ons of deliberation, approval or disapproval, or recommendation, in the purchase of goods and services for the City, and the award of any contracts with the City, except as permitted under the City's Purchasing Regulations and under the laws of the State of Maine, where to his knowledge there is a financial interest, orspecial interest other than that possessed by the public generally, in such purchase or award, held by; 3.271 1u himself that individual or a member of his or her immediate family; 3.2.2 (if1 a business in which he than individual or a member of his or her immediate family serves as an officer, director, trustee, partner or employee in a supervisory or management position; or 3-2.3 (iii) any other person or business with whom he that individual or a member of his or her mediate family are in business, or are negotiating or have an arrangement concerning future employment. u No City Councilor; Board Member or Commission Member shall participate by means of deliberation, approval or disapproval, or recommendation, in the decision to hire, promote, discipline, lay off or to take any other personnel action in respect to any applicant for City employment or Citv employee, me the -ease -map -be where said applicant or employee 3:2.4 fif- a member of his the Councilor Board Member. or Commission a it r 95-234 -5- 3.-2.5 (iii a person with whom either he the Councilor. Board Member, Commission Member r a member of his gr her immediate family are i8 in business. ICI Except as autbgriagd under theC' published Personnel Rules and Regulations. shall participate by means of deliberation, approva1 disapproval,or the de to h' o Qj-,j,jine, lay off or to take other uersonnel action i applicant for to entor City EmoloVee.where aid ucl'cant or emblovele i W a member of the City Emolovee'a immediate family: o with whom either to e a member of his or her immediate family is in business. Action by a City Emplovee stillauthorize underh' b hh action is Permitted under the City's published Personnel Rules and Reoulations, or whenh Council has l d those rules so as to low creation relationship that would hise violate the ry Published rules 3.3 Disclosure of Confidential Information. No City Employee, City Councilor, Board Member or Commission Member shall, without proper legal authorization, disclose confidential information concerning the property, government or affairs of the City; nor shall he gr' she use such information to advance the his or her financial or private interest o the financial or yxiygLQ_jaterest of himself-er others. For purposes of this subsection, the term 'confidential information' shall maany information, oral o written, whichcomes s to the attention of, or is available to, such City Employee City Councilor, Board Member or Commission Member only because of his or her position with the City, and is not a matter of public record. Information received and discussed during a executive session of the Bangor City Council or any City agency called pursuant to 1 MRSA H 405 et seq. shall be considered within the constraints of this section, and shall not be disclosed to any third party unless permitted by affirmative vote of such body. 95-234 6♦C 3.9 Gifts and Favors. No City Bmplovee. City Councilor, Board Member or Commission Member shall accept any valuable -gift gift, favor Or thing£ yalue, whether in the form of service, loan, thing or promise, from any person an®for business which to his or her knowledge is interested directly o indirectly in any manner whatsoever in business dealings with the City; nor shall any City Emolovee, City Councilor, Board Member or Commission Member (1) accept any gift, favor or thing of value that tends to influence him that individual in the discharge of his or her official duties; or (2) grant in the discharge of his or her official duties any improper favor, service or thing of value. Nothing herein shall prohibit the acceptance of gifts or favors by City Employees City Councilors, Board Members or Commission Members from members of their immediate families. In determining whether a 3.5 Use of City Property. No City Employee, City Councilor Board Member or Commission Member shall use or permit the use of any City -owned property, including but not limited to, motor vehicles, equipment and buildings, for any private purposes. Nothing herein shall prohibit the use of City buildings and equipment at rates and/or on terms as may be established. Nothing herein h ll Prohibit the use of City equipment or motor vehiclesby C' accordanceEmployees in h written Policies established by the City Council, City Mana C't department head c d shall this i Ordinance be deemed to prohibitf surplusCity property legally disposed of by the City or its departments in cowliance with established procedures, 3.6 Representing Third Party Interest Before City Agencies. 95-334 -7- _Wj No City Councilor shall either appear on behalf of any third party interest before any City agency, or represent a third party interest in any action, proceeding, or litigation in which the city or one of its agencies is a party. Nothing herein shall prohibit a Councilor,. on behalf of a constituent i the course of his or her duties a representative of the electorate, o any Councilor, on behalf of his or her personal interest, from appearing before a City agency. (C) No Board Member or Commission Member shall appear on behalf of any third party interest before a City agency of which he or she is arent member. Nothing herein shall prohibit caBoard Member or Commission Member, on behalf of his or her personal interest, from appearing before any City agency including that of which he or she is a current member, but such Board Member or Commission Member shall not liberate or vote on the item concerns d. 3.7 Conflicts of Interest. Bangor City Council Agenda Items. (A) Deliberation and Vote Prohibited. No City Councilor, Board Member or Commission Member Shall, n Such capacity, participate in the deliberation or vote, or otherwise take part in the decision-making process, on any agenda item before his or her collective body in which he or she or a member of his or her immediate family has a financial o special interest, other than an interest held by the public generally. 95-234 (B) Disclosure of Conflict. Any City Councilor, Board Member or Commission Member who believes that he or she or a member of his or her immediate family has a financial or special interest, other than a interest held by the public generally, in any agenda item before his or her collective body, shall disclose the nature and extent of Such interest and the City Clerk or his designee shall make aeord of such disclosure. Such disclosure shall be made o later than the date of the first meeting of the City Council, Board, Commission or Committee thereof, at which the agenda item concerned is to be taken up for consideration, recommendation, discussion or vote and at which the City Councilor, Board Member or Commission Member is present. Additionally, any City Councilor, Board Member o Commission Member who believes that any fellow City Councilor, Board Member or Commission Member, or a member of such fellow City Councilor's, Board Member's or Commission Member's immediate family has a financial or special interest, other than an interest held by the public generally, in any agenda Stem before his or her collective body, shall disclose the nature and extent of such interest, and the City Clerk or his designee shall make a record of such disclosure. (C) Determination of Conflict. Once the issue of conflict has been raised relative to an individual City Councilor, Committee Member, Board Member o Commission Member, and disclosure has been made as provided above, such individual's fellow City Councilors, Committee, Board or Commission Members shall review the facts as disclosed to them, and shall vote onwhether o not such individual has a financial or special interest with respect to the agenda item concerned. All conflict of interest questions relating to a particular agenda item shall be resolved prior to any consideration of the item concerned, and each City Councilor, Committee, Board Member or Commission Member present shall be entitled to vote on all conflict of interest questions except those questions pertaining to that individual Councilor, Committee Member, Board Member r Commission Member's a}edged alleged conflict of interest. All votes of conflict of interest questions shall be recorded. A majority vote shall determine the question; but a vote by Committee may later be reviewed by the full City Council upon the City Council's consideration of the same agenda item. 95-234 6'2 Upon determination that a conflict of interest i fact exists, the City Councilor, Committee Member, Board Member or Commission Member concerned shall be excused from participating in discussion, deliberation or vote on the relevant agenda item. In lieu of the vote required by this subsection, the City Council, upon motion and by majority vote may refer the conflict of interest question to the City Board of Ethics in accordance with section 4.6 of this ordinance, or may table its consideration of the relevant agenda item. In the event a majority of the City Council, Board or Commission concerned, or Committee thereof, shall require disclosure of further information not immediately available, or shall require confirmation of the information disclosed, consideration of the relevant agenda item shall be postponed to and Ac appropriate time. (D) Avoidance of Anyearance of Conflict. To avoid the appearance of a violation of this section, once any individual City Councilor, Board Member or Commission Member is determined to have a conflict of interest in respect to any agenda item, and o all conflict of interest questions relating to the agenda item concerned have been determined a provided in section 3.9 {Cenfliet) (C) above, said individual shall immediately remove himself o herself from the meeting room or to the area of the room occupied by the general public. Be or She shall not return to his or her regular seat as a member of the body until deliberation and action o the item is completed. Nothing herein shall require an individual Councilor, or Board Member Or Commission Member to remove himself or herself for any item contained o "Consent Agenda" on which there is no deliberation, the individual's conflict has been determined by the other members, and the right to abstain from voting on the item has been granted. (E) Personal Interest. Nothing herein shall be construed to prohibit any City Councilor, Board Member or Commission Member from representing his n personal interest by appearing before his or her collective body on any such agenda item. 3.8 Disclosure Statement. Within fifteen (15) days after each annual municipal election every City Councilor shall file a completed disclosure form with the City Clerk. Within thirty (30) days after his or her appointment, every Board Member and every Commission Member shall file a completed disclosure form with the City Clerk. such disclosure forms 95-234 -10- shall be under oath and shall contain the following information to the beat of the disclosing party's knowledge and belief: 3.8.1 The name of each person or entity, whether incorporated or not, doing business with the City in an amount in excess of $1,000 during the preceding calendar year from which such disclosing party o member of his immediate family has received money or other thing of value in an amount in excess of $1,000 during the preceding calendar year, including, but not limited to, campaign contributions where applicable. 3.8.2 The nmc of each entity, whether incorporated or not, doing business with the City i amount in excess of $1,000 for preceding calendar year in which such disclosing party or member of his mediate family has a financial interest in an amount in excess of $1,000,rncluding, but not limited to, the ownership of shares of stock. 3.8.3 The name of each nonprofit and/or for profit entity, whether incorporated or not, for which such disclosing party or member of his immediate family holds a position of officer or member of any board, For each such entity, such disclosing party shall provide the following information: fa) S L a brief description of the purpose of each board and/or officer 4b) (iiiashort summary of such disclosing party's or family member's duties relative to any such board and/or officer {e) (iii) the term of service on each such board and/or office�nd jd) (iv) whether or not such disclosing party o family member receives compensation for service on such board and/or office and the extent to which such compensation exceeds $100 in the aggregate annually_ For purposes of this subsection ompensation" shall include, but not be limited to, monetary compensation, gifts, gratuities, perks, fringe benefits, services, and any other thing of value. 95-234 -11- 3.8.4 Every City Councilor, Board Member and Commission Member shall amend his annual disclosure statement as may be required from time to time to ensure the continued accuracy thereof. Each such amendment shall be made within fifteen (15) days following the occurrence which requires the amendment. 3.8.5 The City Clerk shall deliver a copy of each completed disclosure statement to every fellow member of the City Council, Board or Commission of each disclosing party within thirty (30) days after the expiration of the filing period. 3.8.6 For purposes of this Code, a list prepared by the Finance Director of those persons or entities doing business with the City in an amount in excess of $1,000 for the preceding year shall be determinative for purposes of reporting under this section. Income from, and financial investments i policies of i c and deposits in accounts from commercial or savings banks, savings and loan associations, r o credit unions and the ownership of less than 5s of the outstanding shares of stock in publicly held corporation shall not be considered to be a financial interest within the meaning of this section. 3.9 Political Activities. No City Employee, City Councilor, Board member or Commission Member shall participate in any political activity which would be in conflict or incompatible with the performance of his or her official functions and duties for the City. In conjunction therewith: 3.9.1 No City Employee, City Councilor, Board Member or Commission Member may use his or her official authority or position for the purposes of influencing or interfering with or affecting the sults of any election, nor shall he or she solicit funds or contributions or accept or receive funds or contributions from City Employees for political purposes. No City Councilor, Board Member o Commission Member may distribute pamphlets orr handbills while he or she is performing their official functions and duties with the City. Nothing herein shall be construed to prohibit any City Employee. City Councilor, Board Member or Commission Member from participating in the political process in their private capacity as candidates for elected office or as private citizens. 95-236 -12- 3.10 Incompatible 1Office. No City Emolove . City Councilor, Board Member or Commission Member shall occupy any other office, elected or appointed, in any other governmental entity, when the duties of such office are incompatible with the proper discharge of his or her official duties with the City. For purposes of this Code, the occupancy of any office. elected or appointed, with any other governmental entity by any City Councilor, Board Member or Commission Member is hereby prohibited in any -sae -e€ the.following circumstances: W where the duties of the other office make it a physical impossibility to discharge the duties of the City position; or 3.16:2 Ifi1 where one office is subordinate of the other; or 3.10:3 (iii) where one office carries the power of removal of the other; or 3.1874 (iv) Where the occupancy of both offices is prohibited by the City Charter or by other provisions of law_ 3.11 Ethics in Contracting The provisions of this subsection3 shall 1 alldoi business with the City of Bangorvendors suppliers, or ontractor ncludina potential vendors,lc d contractors submittingbids or proposals in e to a City advertisement. 3 11 1 Gratuities and Kickbacks (A) Gratuities. It shall be a viQlaLion of this Code for fE anyyC't to Board Member o Commission Member a gratuity or anoffer of employment in connection With decision, disapproval. recommenda Pertaining to a City purchase order, construction contract, or Professional services contract. or with respect to any solicitation, advertisementeat .for bide eat for mronosals. or anv bid, nrocosal. or other response thereto. 95-234 -13- 3.11.2 Prohibition Aoainst Contingent Peea. It shall be a violation Of this Cade for an to b dsolicit oe seapre a City contract upon an agreement understanding for agrcenta a brokerage. or ont'nentrfeneretention of bona fide emolovegs or bona fide established ial selling agencies for the o of cu eerim business. .11.3 f Value T f d or Received in Breach of Ethical Standards. Other Penalties. (A) General Provisions The value of anything transferred or received in breach of the ethical standards of this Code by a City Employee, Councilor Board Member or Commission Member o other n v be r red from both the City E l person y Councilor, oa MenOoer or Commission Me g her person concerned. 95-234 -14- 3.11.4 Penalties and Sanctions. (B) Uncn conviction f a violation of this subsection finding of a violation by the City E,urchasing Agent, Board of Ethics, h City Council following written notice and theCityCouncil f the rr followino sanctions n the rfir coroorationc convicted or found to be violation: (f) written warnings or reprimands, (ii) termination of contracts: o (iii) debarment o s orovided in the City's Published PurchasinP Policv (Authority to Debar or Suspend). Termination of a contract under this paragraph shall also terminate the contractor's richt tor further Pavmgut thereunder The sanctions provided in this n aoh shall be in addition to thenenalties orovidedan oaraaranh (A) above 3.11.5 Incorporation in Certain Contracts. The provisions of this subsection 3.11 shall be provided to all interested bidders o and shall b d by f power in any City of Bangor Professional seiviggs contract with a base bid riles in excess f S10,000.00. In the case of ract th 1 prg- fessional services cent for hall be the excected value of^ services to be billed durino the on an annual basis if the contract is of indefinite duration -15 - Sec. 4 Board of Ethics 95-234 4.1 Board of Ethics Established. There is hereby created and established a Board of Ethics consisting of five (5) members and two (2) associate members appointed by the City Council. 4.2 Terms. All members shall be appointed for terms of three (3) years each. All associate members shall be appointed for terms of three (3) years each. Each member and associate member shall serve until his successor is appointed and qualified. All members must ber residents of the City of Bangor. No member shall serve more than two (2) complete consecutive terms. 4.3 Other Offices Prohibited. No member or associate member of the Board shall hold any other City office o position or be the member of any City agency to which the City Council shall have appointing authority. 4.4 Procedures and Records. The Board shall establish such rules as it may determine to be necessary to govern its procedures. In addition, the Board shall at all times maintain in the office of the City Clerk appropriate records of its opinions and proceedings. 4.5 Duties. The Board shall make findings of fact an Bpd ender advisery opinions to the City Council when-there €e-AeabE-as-Ee-EAe-a@p}ieabi}iEy-e€-any concerning application of the provisions of this Code to any particular situation.In the performance of its duties, the Board shall limit its review and fact finding only to those issues referred to it by the City Council. The Board shall also make annual recommendations for necessary revisions s to this ordinance and shall perform such other duties as may be prescribed from time to time by the City Council. 4.6 Procedure. Any City Councilor, Board Member or Commission Member seeking advice as to whether a particular situation constitutes an actual or potential violation of this Code shall first submit a written statement in the form of a Council Order describing the nature of the matter to the City Council. I£ the Council feels that an advisory opinion is necessary, it shall adopt the Order, by majority vote, referring the matter to the Board. A tie vote on the Order shall also cause the matter to be referred to the Board. Upon referral of a question, the Board shall have the power to request voluntary statements from all persons concerned, and to review all records on file with the City of Bangor or other public agencies. A11 Board hearinaa hall be conducted in accordanceh rules of procedure to be adopted by the Board The Board may conduct any fact 95-234 -16- finding and deliberations inexecutive session as provided n 1 M.R.S.A. S 405(6)(A). Upon conclusion of its fact finding finding and deliberations, the Board of Ethics shall issue written findings with respect to each matter and question referred to it. If the Board finds any matter referred to it to have been based upon allegations it determines to have been frivolous, unfounded or with malice, it shall so advise the Council. It is the purpose and intent of this Code to provide a mechanism by which all such matters may be handled in an orderly and impartial fashion n such a manner as to protect the beet interestg of the citizens of the City of Bangor.and-the-pereena3-and-private interest-of-its-City-eeanei}era;-Beard-Meebers-and femmissien-Menbere- 4.6.1 Employee Conflicts referral.Upon h Scald of Ethics may render adviaoxv opinions with respect to potential gK prospectivenflicts of interest i i Emploveea However, allegations Ofcastor Dissent misconduct1 alleged violations fhisCod by City Evolovees shall not be reviewed by thQ Board but shall be referred fordisposition in disordance with the Citv's established employee ciplinary Procedures. 4.9 All members shall attend an annual orientation seting to be scheduled during the month of January of each calendar year. 4.8 The Board shall meet at least quarterly and, prior to December 31 of each calendar year, shall prepare and submit to the City Council an annual report outlining its doings during the preceding 12 month period. Sec. 5 Penalties. Violations of this Code shall be punishable by civil fine as provided in Article 4. Section 4 of this Chapter. In addition to any other penalties or remedies as may be provided by law, violation of this Code shall constitute cause for c after notice and hearing conducted by the City Council. A majority of the Bangor City Council shall conduct such proceedings. A violation of this Code by a City Smalovee hall also c nst' grounds for dismissal or other disciplinary action a provided in the City's Published Personnel Rules and Regulations Sec. 6 Separability. If any section, subsection, sentence, clause r phrase of this Code is for any reason held to be invalid or unconstitutional, such validity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Code. 9j _ a 5Y MElIORAMDBMProf May 17, 1995 TO: Bangor City Council FROM: Erik 9tumpfel, City Solicitor RE: Board of Ethics Procedural Rules At its meeting on Monday, May 15, 1995, the Board of Ethics finalized and adopted a set of procedural rules for the conduct of advisory opinion hearings and violation hearings pursuant to the City's Code of Ethics. A copy is attached for your reference. Although these procedural rules are intended to operate as a stand-alone document under the City's existing Code of Ethics, they also complement the Board of Ethics' proposed revisions of the feting Code. Those proposed revisions will be given first reading at the Council's next meeting on Monday, May22nd. The Council's discussion of the Board's proposed Code of Ethics revisions will occur at the Council's .lune 12th meeting, when the Code of Ethics revisions come back to the Council for second reading. You may wish to refer to the attached procedural rules as part of that discussion. 2'S. E.S. to Attachment pc: Edward A. Barrett, City Manager CRuaeeIl-a' McKenna',-:City-Clerk.- CITY OF BTNGOR BOARD OF ETHICS PROCEDURAL RULES 1. P d S These rules apply to all matters referred to the Board of Ethics by the Bangor City Council for hearing pursuant to section 4.6 of the City's Code of Ethics (Chapter I, Article 6, Section 4.6, Bangor City Ordinances). II.. Definitions (1) Advisory oninion. An advisory opinion is an opinion rendered by the Board of Ethics upon referral by the Bangor City Council under section 4.6 of the Code of Ethics, and which relates to potential or prospective conflicts of interest, not involving allegations of a past or present violation of the Code of Ethics. These opinions are rendered at the City Council's request for the purpose of providing guidance, concerning future conduct, to the City Council and to the particular individuals to whom the opinion pertains. (2) AttornvAn attorney shall be an attorney-at-law or any other person representing a party in regard to an alleged violation of the Code of Ethics. An Attorney shall not be eccgnized as such for purposes of a violation Hearing until the attorney has filed a written notice of appearance by letter directed to the Board of Ethics. In the case of an -lawyer attorney, the notice of appearance shall include a signed, written consent by the party concerned. An oral appearance at the time of hearing may be substituted for the written notice of appearance. (3) Board. As used herein, 'Board° shall mean the Board of Ethics of the City of Bangor established under section 4 of the City's Code of Ethics. (4) Interested Persons. Interested persons shall include any resident of the City of Bangor or any other persons having a direct and tangible interest in a Board of Ethics ruling on a request for an advisory opinion. Any person whose future conduct or vote would be affected by a Board of Ethics advisory opinion in a particular matter shall be an interested person with respect to the Board's hearing of the matter concerned. (5) Noti' +. Notice consists of written notification delivered to a party or to d party's attorney in hand or by US mail, informing the party of a charge, hearing date, or other intended action by the Board of Ethics. The initial notice to a party of a violation Hearing shall be delivered by certified mail, return receipt requested. If delivery of the initial notice is -accepted, subsequent notices may be sent by first class Us mail, uncertified, to the same address. -2- (6) pares. A party is any person alleged to have committed a violation of the Code of Ethics, whose conduct in the matter concerned is the subject of a violation Hearing by the Board of Ethics. (7) Violation Hearing. A Violation Hearing isa hearing conducted by the Board of Ethics upon referral by the Bangor City Council under section 4.6 of Code of Ethics, for the purpose of determining whether a violation of the Code of Ethics has occurred. A determination by the Board of Ethics that a violation has occurred may serve as a basis for later prosecution or sanctions against the violator as provided in the Code of Ethics. III HearinProcedure A. Advisory Opinion Hearin Preheating Procedure Upon adoption of an Order by the City Council requesting an advisory opinion, the City Solicitor shall transmit the order and all related materials to the members of the Board of Ethics, and shall consult with the Chair of the Board for the purpose of establishing a hearing date. A hearing date shall be established by the Board Chair so as to allow sufficient time for the publication required below. Not less than three weeks prior to the hearing date, the City Solicitor shall cause to be published in the Bangor Daily News a public notice describing the subject matter of the request for advisory opinion, stating the date, time and place of the Board's hearing, and inviting submission of written comments by interested persons. The notice shall state that all written comments must be received in theoffice of the City Solicitor no less than ten days prior to the scheduled hearing date. In addition, the City Solicitor may invite individuals known to be interested persons to submit written comments within the same period. The City Solicitor shall promptly forward all written comments received from interested persons to the members of the Board of Ethics for their review. Conduct of Hearing&. All hearings of the Board of Ethics on requests for advisory opinions shall be conducted as public hearings, except as provided below under Deliberation and Decision. Upon opening of the public hearing, the Board Chair or City Solicitor shall present a statement of the issue referred by the City Council, together with a synopsis of written comments timely received. Thereafter, the floor shall be open for oral comments by interested persons. Except a otherwise provided by the Board, oral comments shall be limited to five minutes per person, and shall alternate between persons advocating opposing views, to the extent such persons may appear. Board members may ask questions of each speaker, and the time required to respond to the members' questions shall be in addition to the five minutes allotted to each speaker. -3 - In addition to written comments and speakers' presentations, the Board members, through the City Solicitor, may request production of any non -privileged public documents under City control or otherwise available, and may request the voluntary appearance of any individual for the purpose of presenting testimony on the issue under consideration. Deliberation d Decigion. Upon conclusion of the public hearing, the record shall be closed, and the Board shall meet to deliberate and consider its decision. By motion approved in public session, the Board may elect to conduct its deliberations in a closed session. Following its deliberations, the Board i open session may vote and determine the issue referred. Alternatively, the Board may take a poll of its members, and request preparation of a draft opinion by the City Solicitor based on the contents of the Board's deliberations and the poll vote. -If preparation of a draft opinion is requested by the Board, the Board shall adjourn for that purpose. A draft opinion shall be prepared by the City Solicitor and circulated to the Board members for their review at least seven days prior to the Board's next meeting on the issue. The draft opinion shall be presented and voted upon at the Board's next public meeting following the seven-day circulation and review period. The Board shall meet and render its decision not more than thirty (30) days after the close of the record on any issue. Prior to a final vote, the draft opinion may be amended in whole or part by an appropriate motion to amend passed by the Board. Upon adoption of a final written opinion, or upon a final vote at the Board's original hearing if no written opinion i requested, the City Solicitor shall transmit a summary of the Board's final opinion or decision to the City Council. Exnedited Hearings. Upon receipt of a Council order requesting an expedited opinion on the issue referred, the Board shall promptly meet to review and determine the matter on the basis of such information and comments as may be available to it, without the 21 day notice and public comment period otherwise required above. An expedited hearing shall be held only upon a finding by the Bangor City Council that important interests of the City or the parties require a determination of the matter within the time specified in the Council's referral order. An expedited hearing by the Board shall be conducted as a public hearing with an opportunity for oral convents by interested persons asset out above. Public notice shall be provided at. least 72 hours in advance of any expedited hearing. B. violation Hearings Prehearing Procedure. upon adoption. of an order by the City Council requesting an opinion concerning an alleged violation of the Code of Ethics, the City Solicitor shall transmit the order and all related materials to the members of the Board of Ethics for their review, and shall consult with the Chair of the Board for the purpose of establishing a hearing date. A hearing date shall be established in such time as to allow a minimum of three weeks written notice to all parties. Upon establishment of the hearing date, the City Solicitor shall provide each party whose conduct will be the subject of the Board's hearing with individual written notice stating the time, date and place of the hearing. The notice shall be sent by certified mail, return receipt requested, to the party at his or her last known address. The notice shall include a copy of the City Council's Order referring the matter and copies of all related materials. The notice shall also advise the party concerned that copies of any written exhibits the party may wish to offer must be received in the office of the City Solicitor no less than ten days prior to the scheduled hearing date. The City Solicitor shall promptly forward copies of a party's written exhibits to the Board members for their review. Fostnonements. Upon request of a party and for cause, the Board's Chairmaygrant reasonable postponements of a scheduled hearing date. No more than one postponement shall be granted to any party.. prehearina Conference. If it appears the hearing concerned may involve complex issues o witnesses, the City Solicitor shall arrange a preheatingconferencewith all parties and their attorneys, for the purpose of identifying witnesses and exhibits and addressing scheduling issues. This conference may take place in person or by telephone. The prehearing conference will be arranged at least seven (5) days prior to the scheduled hearing date. - Conduct of Hearings. All Violation Hearings shall be conducted as public hearings, except as provided below under Deliberation and Decision. Upon the opening of the public hearing, the City Solicitor shall present a statement of the question referred by the City Council, together with related materials and exhibits timely filed. In addition, the Board members, through the City Solicitor, may request production of any non -privileged public documents under City control or otherwise available, and may request the voluntary appearance of any individual for the purpose of presenting testimony on the question under consideration, witnesses desiring to present sworn testimony shall be sworn by the City Solicitor. Following each witness' testimony, parties or their attorneys shall be permitted to address questions to the witness through the Board Chair. In his or her discretion, the Chair may permit a party or attorney to cross examine the witness. by direct questions. " -5 - Upon completion of all testimony and presentation of all documents requested by the Board, each party shall be permitted to present witness testimony and/or make a direct presentation, in person or through the party's attorney. My witness or party desiring to present sworn testimony shall be sworn by the City Solicitor. Following the testimony of each individual, Board members may direct questions to the witness or party concerned. if the hearing involves multiple parties, each party or the party's attorney shall be permitted to address questions to the individual testifying, as provided above. If the hearing involves multiple parties, the Board Chair shall determine the order of presentation by the parties and their witnesses, unless the order of presentation has been addressed during a prehearing conference. Upon conclusion of all testimony and presentation of all documents and exhibits, the Board Chair shall declare the record to be closed. Deliberation and Decision. Upon conclusion of the violation Hearing, when the record has been closed, the Board shall meet to deliberate and consider its decision. The Board's deliberations shall be conducted in the same manner as provided in these Rules for Advisory Opinion Hearings. Each party shall be provided with a written notice of the Board's decision, which shall include a copy of any written opinion adopted by the Board. Exoedited Hearings. The Board of Ethics shall not conduct expedited violation Hearings, except by majority vote of the Board, following a written request signed by all parties to the hearing. C. Miscellaneous Ex Parte Contacts. The Board of Ethics and its members individually shall not engage in any = parte contacts or communiciations with a party, witness, or interested person in any matter referred to the Board for hearing by the Bangor city Council. The Board shall determine all issues and questions referred by the City Council solely on the basis of testimony and exhibits properly admitted at the Board's public hearing on the matter concerned. Rules of Evidence. The Board's Chair, with the advice of the City Solicitor, shall rule on all questions concerning the admissibility of evidence in Board proceedings. TheChair's rulings shall be based generally on the Maine Rules of Evidence as currently in force; but the Board may consider any evidence that the Chair determines to be relevant and reliable, notwithstanding an objection based on the hearsay character of the evidence concerned or based on a lack of formal authentication in the case of documents. -6 - Vote Required on Motions. All motions referred to in these Rules shall require a simple majority vote of those present and voting for approval by the Board. Other Rules. The Board's procedure in matters not Covered by these Rules shall be governed by the most current edition of Robert's Rules of order. Revised. AAppea s. It is the intent of these procedural rules not to create an avenue for judicial appeals of the Board's decisions under Rule BOB, M.R.Civ.P., or otherwise, except as currently required by law.