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HomeMy WebLinkAboutOrdinance No. 2319-2008Suggested by: Councilor Swarner CITY OF KENAI ORDINANCE NO. 2319-2008 AN ORDINANCE OF THE COUNCIL OF THE CITY OF KENAI, ALASKA, AMENDING THE ETHICS RULES FOR ELECTED AND APPOINTED OFFICIALS AND CITY EMPLOYEES BY AMENDING THE EXISTING KMC 1.85.060 and 070. WHEREAS, KMC 1.85.060 (Conflicts of interest prohibited) currently regulates conduct of elected and appointed officials and city employees; and, WHEREAS, properly functioning municipal government requires ethical behavior by public officials and employees; and, WHEREAS, reasonable standards of conduct are needed for elected and appointed public officials and city employees in order to maintain the public's trust in municipal government; and, WHEREAS, the current conflict of interest rules need to be replaced by a more comprehensive set of guidelines for council and commission members and city employees; and, WHEREAS, it is in the best interest of the City of Kenai to amend KMC 1.85.060 and .070. NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA that KMC 1.85.060 and .070 is amended as follows: 1.85.060 Conflicts of interest prohibited. (a) A municipal officer, appointed commission member, or employee of the City of Kenai may not solicit or receive money for advice or assistance given in the course of their official duties for the City of Kenai. (b) A municipal officer, appointed commission member, or employee of the City of Kenai may not represent a client before the City Council for a fee. However, a commission member may represent a client before a commission or the City Council for a fee if it does not involve a matter that is/was before the member's commission. (c) A municipal officer, appointed commission member, or employee of the City of Kenai may not accept a gift, loan, gratuity, or other valuable consideration, or a promise of any of them, with the understanding or agreement, expressed or implied, that he/she will cast a vote or given an opinion, decision, or judgment in a particulaz manner, in a matter, question, cause, or proceeding which then is or may by law come or be brought before him, or with the understanding or agreement that the officer or employee will, in his/her official capacity, act in a particular manner to produce or prevent a particular result. (d) No Council or Commission Member may vote on any question in which he she has a substantial direct or indirect financial [PECUNIARY) interest. Direct or indirect financial [PECUNIARY] interests shall be disclosed to the presiding officer prior to a Ordinance No. 2319-2008 Page 2 of 4 vote on the question and the presiding officer shall determine whether the financial interest exists and whether the prohibition from voting is applicable. A decision by the presiding officer may be overridden by a unanimous vote of the members present, exclusive, of the member presenting the possible conflict. i~ Whether the direct or indirect financial interest is substantial shall be determined by the presiding officer on a case-bv-case basis, with evaluation of these factors: (i) Whether the financial interest is a substantial part of the consideration; (ii) Whether the financial interest directly and substantially varies with the outcome of the official action• (iii) Whether the financial interest is immediate and known or conjectural and dependent on factors beyond the official action; (iv) Whether the financial or private interest is significant monetarily; (v) Other factors deemed appropriate by the presiding officer under the specifics of the disclosure and the nature of the action taken before the council or commission. 1~ A municipal officer, commission member or employee of the City of Kenai may not use, or permit others to use, an~property owned by the city for profit or personal use or benefit, except: (1) When available to the public generally, or to a class of residents, on the same terms and condifions• (2) When permitted by written personnel policies approved by the City of Kenai• (3) When, in the conduct of official business, used in a relatively minor way for personal convenience. f~ A municipal officer, commissioner or employee of the City of Kenai shall not take or participate in official action on matters, other than minor or routine issues affecting a former employer for a period one year from the date of termination of the prior employment. fgl A City employee may not participate in an official action in which he/she or a member of his/her household, has a substantial financial interest. f I~ A municipal officer, commissioner or employee of the City of Kenai who leaves municipal service may not for one year after leaving municipal service, represent, advise, or assist a person for compensation regarding a matter that was under consideration by the city if the person participated personally and substantially in the matter through the exercise of official action. This restriction on employment after leaving municipal service does not prohibit the city from contracting with a former city employee, commissioner or municipal officer on a matter on behalf of the city. The City Council may waive application of this restriction by motion upon determination that a proposed action is not adverse to the public interest. Ordinance No. 2319-2008 Page 3 of 4 f ij A municipal officer or employee of the City of Kenai is prohibited from bidding won or otherwise obtaining any property which is unneeded or surplused by the city. jjl A current or former municipal officer, commissioner or employee may not disclose or use information gained in the course of, or by reason of, the person's official duties that could reasonably result in the receipt of any substantial personal or substantial financial benefit for the person or his/her immediate family member unless the information has also been disseminated to the public. j~k A current or former municipal officer, commissioner or employee may not use or disclose without appropriate authorization, information acquired in the course of official duties that is confidential. ll If any section or provision of this ordinance is held to be contrary to law b~ court of competent jurisdiction, that section or provision shall be deemed invalid. All other sections and provisions of this ordinance shall continue in full force and effect. ~ The City Clerk shall cause a copy of this section to be distributed to every municipal officer commissioner and employee of the City of Kenai within thirty days after its enactment Each municipal officer, commissioner and employee elected, appointed or engaged thereafter shall be furnished a copy before entering into the duties of his/her office or employment. 1.85.070 Definitions as used in this chapter. (a) "Municipal Officer" means the Mayor, City Manager, Members of Council, City Attorney and City Clerk. (b) "Source of Income" means an employer, other person, or entity paying compensation, dividends, or interest, directly or indirectly, for services, products, or investments. If the income being reported is derived from employment by a sole proprietorship, partnership, or corporation in which the reporting person, spouse, or children, or a combination of them hold a controlling interest, that proprietorship, partnership, or corporation may be designated as the source of income without specifying clients or customers if the business is one that is normally conducted on a cash basis and typically does not keep records of individual customers. In all other cases, the clients or customers of the proprietorship, partnership or corporation shall be listed as sources of income of the person whose income is being reported, the spouse, children, or a combination of them holding a controlling interest. jcj "Financial interest" means the receipt of financial benefit or the expectation of receiving financial beneft. A financial interest includes a financial interest of any member of the person's household. A person has a financial interest in an organization if he/she has an ownership interest in the organization, is a director, officer or employee of the organization. A financial interest also includes appearance as an attorney or a party plaintiff or defendant, or as a real party in interest, in any lawsuit master's hearing or other Iegat proceeding in which the city is a party plaintiff or defendant or otherwise has a direct interest. A financial interest does not include: (il an affiliation with an organization solely as a volunteer, club member, or the like; or Ordinance No. 2319-2008 Page 4 of 4 (ii) a personal or financial interest of a type which is generally shared in common with the public or a large class of citizens. 1~ "Household" includes anyone whose primary residence is in the employee's, commissioner's or municipal officer's home, including non-relatives. ~ "Official action" means a recommendation, decision, approval, disapproval vote or other similar action including inaction by an employee whether such action is administrative, legislative, quasi-iudicial, advisory or otherwise. PASSED BY THE COUNCIL OF THE CITY OF KENAI, ALASKA, this 18th day of June, 2008. `° PAT PORTER, MAYOR ATTEST: Carol L. Freas, C: yk Introduced: June 4, 2008 Adopted: June 18, 2008 Effective: July 18, 2008 CITY AF KENAI 210 FIDALCO AVE., KENAI, ALASKA 99611-7794 TELBPHONE: 907-283-7535 FAX: 907-283-3014 MEMORANDUM TO: Mayor Porter and the Kenai City Council FROM: ~~~Cary R. Graves, City Attorney DATE: May 28, 2008 RE: Ordinance No. 2319-2008 Attached is Ethics Ordinance No. 2319-2008. It has three changes from the draft that was in the packet on April 16, 2008. The first one is the proposed new language in KMC 1.85.060(b). In general, that subsection prohibits an employee or commissioner from representing clients in front of the Council. The change would allow a commissioner to represent clients before a commission or the Council if it does not involve a matter that has come before the member's commission. Here's an example; if a surveyor were on the Parks and Recreation Commission, he/she could not now represent a person on a Planning and Zoning appeal to the Council/Board of Adjustment even though the case has nothing to do with his/her duties as a Parks and Recreation Commissioner. This exception. ~n~ould allow him/her to represent a client as long as it did not involve a matter that .vas before the Parks and Recreation Commission. This change was made at the suggestion of the Airport Commission. There were three comments from Airport Commission members about the draft. Attached is an e-mail from Councilor Molloy summarizing the three comments I did not include the other two changes because I thought they were of such a substantive nature that Council needed to make the call. The two other changes would exempt some advisory commissions from the conflict of interest rules. The second change adds a new subsection in KMC 1.85.060(b). It prohibits an employee taking an official action on an issue in which he/she has a substantial financial interest. For example, if I applied for a lease of city property I could not participate in The administrative review and processing of the lease. The third change adds a definition of "official action" to KMC 1.85.070(e). Since the ordinance will not have a public hearing until June 18`", there is plenty of time for comments and suggested changes. Comments are welcome from the Council, staff, and the public. New comments received will be relayed to Council in the next packet. I would appreciate if Council would let me know ahead of June 18th of any amendments or substitutes so I can have time to put them down in writing before the public hearing. That should make the amendment process go smoother. On a related note, we are working on draft disclosure forms for the City if we opt out of the state APOC reporting requirements. They will be in the packet for the June 18~' meeting along with a memorandum outlining what the City reporting requirements will be if there is an opt out. Please let me know if you have any comments or questions. Cary Graves From: Bob Molloy [bob@molloyForcouncil.com] Sent: Friday, May 09, 2008 1:33 PM °~; Cary Graves Mary Bondurant; Linda Swarner; Henry Knackstedt .,ubject: Airport Commissioner Comments on Draft Ethics Ordinance Hi Cary Some of the Airport Commissioner Comments on the Draft Ethics Ordinance incl..uded the following: 1. Consider eliminating purely Advisory Commissions from the ordinance, so that the ordinance applies only to Council, P & Z, and employees. 2. Alternatively, consider that not all Commissions are the same, and how does that fact relate to the ordinance. This issue came up in the context of the discussion of the ordinance over fuel flowage charges. Airport Commission, by Code, has specific designated seat s, .such as FBO Operator. The FBO Operator (and other seats) may have a substantial direct f5.nancial interest in the outcome on that ordinance, and so could not vote if KMC 1.85.060 (d) was in effect, yet the City wants them on the Commission and wants their views. The change in the Ethics Code may require a change in the code on the composition of the Airport Commission, or require the current commissioners in some of the designated seats to have to resign, unless some accommodation is made in the legislation. 3. There was some concern expressed thatcurrent code 1.85.060 (b) is -boo broad. An appointed Commission member (non- P & Z) whois an igineer, for example, may need to represent a client to P & Z, then .e client might be involved in an appeal to Council. Current Code would disqualify that non ° & Z Commissioner from representing the client before Council for a fee. Since the appeal matter is unrelated to the appointed commissioner's dcties, it was felt that (b) is too broad. Bob Molloy 1 ~~~~~ 4- theutyaf KENA~ KKA "!/'lla9e with a Past, Gc~ with a Facture" 210 Fidalgo Avenue, Kenai, Alaska 99611-7794 Telephone: (907) 283-7535 /Fax: (907) 283-3014 www.ci.kenai.ak.us MEM® NDUM TO: / Mayor Porter and the Kenai City Council FROM: G~ Cary R. Graves, City Attorney DATE: .Tune 12, 2008 RE: Conflict of Interest Ordinance (No. 2319-2008) I have received comments from the Planning and Zoning Commission (through Councilor Ross), Airport Commission (through Councilor Molloy), the City Manager, Police Chief and Planner regarding the proposed conflict of interest ordinance. 1. Comments from the Planning and Zoning Commission and the Planner were about the proposed language in KMC 1.85.060(b). In the ordinance that subsection reads, "A municipal officer, appointed commissioner member, or employee of the City of Kenai may not represent a client before the City Comicil for a fee. However. a commission member may represent a client before a commission or the Citv Council for a fee if it does not involve a matter that is/was before the member's commission." Based on the Planning and Zoning Commission's concerns, Councilor Ross suggested language be added after "member's commission" He suggest adding, "or if the member has declared a conflict of interest and has abstained. or affirmed that he will so abstain. from discussion or voting on the issue." That additional language satisfies the concerns that Planner had regarding subsection (b). The Airport Commission's concerns about subsection (b} were similar to those of the Planning and Zoning Commission. // // // // // Memo -Conflict of Interest Ordinance No. 2319-2008 Page 2 of 3 The Planning and Zoning Commission also had concerns about subsection (h).'. In general that subsection would prohibit a former municipal officer, commissioner or employee from assisting a person for compensation for a period of one year regarding a matter that the person "participated personally and substantially in the matter through the exercise of official action." The Comicil can waive that provision, and the waiver process apparently satisfied some of the concerns of the Planning and Zoning Commission. There was a question about how the waiver process would work since it is not spelled out in the ordinance. The waiver section now reads, "The City Council may waive application of this restriction upon determination that a proposed action is not adverse to the public interest." Adding the phrase "by motion" to that sentence after the word "restriction" would clarify the language. Another amendment that the Council may want to consider adding the word "personally" to the first sentence of subsection (h) after the word "service." Here's what this would clarify: let's say Engineer A retired from the City after working on a particular city road project plan. Engineer A then goes to work for Engineer Firm 1. Engineer Firm 1 could still work for the City on the road project plan as long as Engineer A didn't personally work on it. 3. The next comments were in regard to subsection (i).2 In general, that subsection does not allow a city employee to bid in a city surplus auction unless the employee shows he/she does not have special knowledge about the item to be bid on.This section was added because the city has had complaints from citizens on two occasions in the past about city employees bidding on items that the citizens felt the employees had "inside knowledge" of regarding the property's value that they could not get from simply looking at the property before the auction. Those citizens had pretty negative feelings about the fairness of the auction process. ~ (hj A municipal officer, commissioner or employee of the City of Kenai who leaves municipal service may not for one year after leaving municipal service, represent, advise, or assist a person for compensation regarding a matter that was under consideration by the city if the person participated personally and substantially in the matter through the exercise of official action. This restriction on employment after leaving municipal service does not prohibit the city from contracting with a former city employee, commissioner or municipal officer on a matter on behalf of the city. The City Council may waive application of this restriction upon determination that a proposed action is not adverse to the public interest. ~ (i) A municipal officer, commissioner or employee of the City of Kenai is prohibited from bidding upon or otherwise obtaining any property which is unneeded or surplused by the city unless that person can satisfactorily demonstrate to the City Manager, or city council if the person is a City Manager or Council Member, that no reasonable conclusion could be made that the person possessed knowledge about the property which would not be readily obtainable or observable to a member of the general public. Memo -Conflict of InteresT Ordinance No. 2319-2008 Page 3 of 3 The Police Chief commented that the waiver process might be cumbersome, although he understood the reasons behind the subsection. The City Manager also had concerns about the waiver process being cumbersome. He suggested either eliminating the subsection or prohibiting employees from bidding in city auctions. 4. The Airport Commission comments covered three issues. The first one was about KMC 1.85.060(b). Their concerns were similar to those ~f the Planning and Zoning Commission and are described in Section 1 above. The next comment was about the possibility of exempting the advisory commissions from the conflict of interest provisions and having it instead apply to the Council Members, employees and the Planning and Zoning Commission. As an alternative, it was suggested that perhaps just the Airport Commission should be exempted from the conflict of interest ordinance. The idea behind it was that the intent of the commission makeup is to have some of the members be users of the airport and those users will consistently have conflicts on issues such as fees and charges. Please let me know if you have any comments, questions or concerns.