• 1. Conflict of Interest.
• 2. Legislators Employed by City
• 3. Recusal
• 4. Gifts
• 5. Special Consideration
• 6. Representation
• 7. Appearances
• 8. Confidential Information
• 9. Political Solicitation
• 10. Patronage
• 11. Revolving Door
• 12. Misuse of City Property and Reimbursements
• 13. Nepotism
• 14. Transactions with Subordinates
• 15. Fees and Honorariums
• 16. Endorsements
• 17. Consultants
• 18. Complicity with or Knowledge of Others' Violations
• 19. Falsely Impugning Reputation
• 20. Meeting Attendance
• 21. Honesty in Applications for Positions

• 1. Resignation, Compensatory Action, Apology.
• 2. Disciplinary Action.
• 3. Civil Fine.
• 4. Damages.
• 5. Civil Forfeiture.

To read the foreword and introduction to this Model Code, click here.

To discuss the Model Ethics Code Project itself, click here.

To discuss municipal ethics codes in general - their value, necessity, and role in ethics programs - click here.

To discuss problems and solution with respect to getting ethics codes passed or improved, click here.

Model Municipal Code of Ethics

Declaration of Policy, Purpose, and Obligations

To discuss declarations of policy, click here.

The proper operation of our city's government requires that public officials and employees act as public servants: courteous, impartial, honest, open, and responsible to the city's residents; that they act as fiduciaries entrusted with and responsible for the property and resources of the community; that they make governmental decisions and policies in the proper channels of the government structure, free of coercive or other improper influence; and that they use their office and employment in the best interests of the city rather than for personal interests, whether their own interests or those of their family, friends, or business and political associates.

It is central to gaining and retaining the public's trust in our city's government that public servants seek to avoid even the appearance of impropriety. Fulfilling one's role as public servant sometimes means sacrificing rather than gaining opportunities.

This code focuses on conflicts of interest, which affect the decisions of government officials and employees in ways that are unfair both to the community and to individuals and entities who lack special relationships with our city's officials. When public servants make decisions that are not or do not appear to be impartial, this seriously undermines public confidence in government.

While the vast majority of municipal officials are well-meaning, being well-meaning is not enough. It is important that officials understand the conflicts they confront every day, appreciate their fiduciary obligations to city residents, and recognize the importance of preventing conflicts from occurring, disclosing conflicts when they arise, and withdrawing from any involvement in a matter where they have a conflict (recusing themselves).

Nothing is more important to public trust than having public servants err on the side of disclosing every possible conflict and recusing themselves even where they feel certain they can act impartially.

The purposes of this ethics code are:

(a) To establish standards of ethical conduct - especially those dealing with conflicts between personal interests and those of the city - for city officials, employees, consultants, candidates, and those who do business with the city;

(b) To provide clear guidance with respect to such standards by clarifying which acts are allowed and which are not;

(c) To promote public confidence in the integrity of our city's governance and administration;

(d) To provide for the consideration of potential ethical problems before they arise, to minimize unwarranted suspicion and to enhance the accountability of our city's government to city residents; and

(e) To provide for the fair and effective administration and enforcement of this code.

There is more to ethical conduct than what is covered by this code, which consists primarily of enforceable rules about conflicts of interest. The city must also provide a healthy ethical environment with positive means of encouraging ethical behavior among its public servants. And individuals - especially community leaders - must commit themselves to thinking and acting ethically.

Ethical conduct depends on thinking about one's acts not in terms of what is politically popular, best for oneself and one's colleagues, or even most effective and efficient, but in terms of what is in the best interests of the city. Ethics is not just about enforceable rules, but also about democratic ideals and aspirational goals. Central to ethical action is respect for city residents (treating them as ends rather than as means) as well as self-respect (integrity, expecting the best of oneself).

There are expectations placed on those who govern and administer our city's government, there are values to which our city's officials and employees aspire, and there are obligations that our city's officials and employees accept when they take their jobs or offices. This is especially true of elected officials and department heads, because they have accepted more responsibility for the decisions that are made.

The American Society for Public Administration's (ASPA) Code of Ethics is an excellent list of a government administrator's obligations, based on values rather than job description. These are the obligations our government leaders should be reinforcing and to which individuals should be committing themselves. The ASPA Code is especially valuable because it is not the work of ethics specialists, but of government administrators themselves. These obligations will not be enforced by the Ethics Commission, because they are difficult to define concretely enough so that they can be enforced.* However, these values and obligations should be expected and aspired to in our city. Anyone who has questions about these values and obligations may seek clarification from the Ethics Commission as to how they apply them to specific situations.

* Note that the ASPA code is intended for unelected administrators, so that the provision requiring nonpartisanship should not be applied to elected officials who belong to political parties. On the other hand, the most basic conflict of interest in government (accepted as it is by our democratic process) is between the public interest and the interest of elected officials in getting re-elected.

American Society for Public Administration
Code of Ethics

To discuss aspirational ethics codes, click here.

I. Serve the Public Interest

• Exercise discretionary authority to promote the public interest.
• Oppose all forms of discrimination and harassment, and promote affirmative action.
• Recognize and support the public's right to know the public's business.
• Involve citizens in policy decision-making.
• Exercise compassion, benevolence, fairness, and optimism.
• Respond to the public in ways that are complete, clear, and easy to understand.
• Assist citizens in their dealings with government.
• Be prepared to make decisions that may not be popular.

II. Respect the Constitution and the Law

• Understand and apply legislation and regulations relevant to their professional role.
• Work to improve and change laws and policies that are counterproductive or obsolete.
• Eliminate unlawful discrimination.
• Prevent all forms of mismanagement of public funds by establishing and maintaining strong fiscal and management controls, and by supporting audits and investigative activities.
• Respect and protect privileged information.
• Encourage and facilitate legitimate dissent activities in government and protect the whistle-blowing rights of public employees.
• Promote constitutional principles of equality, fairness, representativeness, responsiveness, and due process in protecting citizens' rights.

III. Demonstrate Personal Integrity

• Maintain truthfulness and honesty and not compromise them for advancement, honor, or personal gain.
• Ensure that others receive credit for their work and contributions.
• Zealously guard against conflict of interest or its appearance: e.g., nepotism, improper outside employment, misuse of public resources, or the acceptance of gifts.
• Respect superiors, subordinates, colleagues, and the public.
• Take responsibility for their own errors.
• Conduct official acts without partisanship.

IV. Promote Ethical Organizations

• Enhance organizational capacity for open communication, creativity, and dedication.
• Establish procedures that promote ethical behavior and hold individuals and organizations accountable for their conduct.
• Provide organization members with an administrative means for dissent, assurance of due process, and safeguards against reprisal.
• Promote merit principles that protect against arbitrary and capricious actions.
• Promote organizational accountability through appropriate controls and procedures.
• Encourage organizations to adopt, distribute, and periodically review the code of ethics as a living document.

V. Strive for Professional Excellence

• Provide support and encouragement to upgrade competence.
• Accept as a personal duty the responsibility to keep up to date on emerging issues and potential problems.
• Encourage others, throughout their careers, to participate in professional activities and associations. Allocate time to meet with students and provide a bridge between classroom studies and the realities of public service.

This code is enacted pursuant to [Section ____] of [state statutes] and is not intended to authorize any conduct prohibited by that section.

Comment: It is helpful to list other municipal and state ethics-related laws here, or reference a supplement containing them, so that all ethics laws are available in one place. In this way, people will not have to search for them or worry if they have missed any rules or exceptions. It is also helpful for authors of ethics laws to consult all other relevant laws, so that there will not be any contradictions.

Why freedom of information? Because it involves one of the most often abused conflicts of interest: between the public's right to know and the municipal official's desire to keep information hidden, for personal or political reasons (it's much easier to do one's job in secret than in the public eye; it is especially easier to act unethically when acting in secret). In fact, it would be completely appropriate for a municipal ethics code to supplement the Freedom of Information Act in areas that have been problems in a particular city. For example, an ethics code could include longer notice requirements for meetings and agendas, shorter periods in which to provide information (as well as lower reproduction costs), and requirements for notice and the placement of information on the city website.

Part A: Ethics Provisions

100. General Conflict of Interest Provisions.

1. Conflict of Interest.

To discuss this provision, click here.

An official or employee* may not use his or her official position or office, or take or fail to take any action, or influence others to take or fail to take any action, in a manner which he or she knows, or has reason to believe, may result in a personal* or financial benefit*, not shared with a substantial segment of the city's population, for any of the following persons or entities:

1. himself or herself;
2. a member of his or her household*, including a domestic partner* and his or her dependents, or the employer or business of any of these people;
3. a sibling or step-sibling, step-child, parent or step-parent, niece or nephew, uncle or aunt, or grandparent or grandchild of either himself or herself, or of his or her spouse or domestic partner, or the employer or business of any of these people;
4. an outside employer or business* of his or hers, or of his or her spouse or domestic partner, or someone who works for such outside employer or business;
5. a customer or client*;
6. a person or entity from whom the official or employee* has received an election campaign contribution of more than $200 in the aggregate during the past election cycle (this amount includes contributions from a person's immediate family or business as well as contributions from an entity's owners, directors, or officers, as well as contributions to the official or employee*'s party town committee or non-candidate political committee);

7. a substantial debtor or creditor of his or hers, or of his or her spouse or domestic partner; or

8. a nongovernmental civic group, union, social, charitable, or religious organization of which he or she (or his or her spouse or domestic partner) is an officer or director.

Comment: The central point of an ethics code is that city officials and employees should not prefer, over the public interest, their own interests or the interests of their family or business associates. There are other relationships that should be included in the above list, but cannot due to problems of defining them. These include romantic relationships short of domestic partnership, and close friends and associates.

The general rule is: If it looks to others as if you might be giving someone special treatment, or if it would look that way to others if they knew about the relationship, then you should not act with respect to that person or entity, and instead recuse yourself under subsection 3 below. It is important to give city residents confidence that their officials and employees are treating everyone the same, even when you believe that you can be totally impartial.

I believe that cities should consider special ethical guidelines and rules for city attorneys. This is a complicated area, where it is sometimes not clear what it means to represent the city (the mayor, the council, the public interest in such things as truth, openness, ane fair process). I feel that guidelines are important not only for attorneys, who often do not recognize the special conflicts they face, but also to protect the public interest, which is harmed by city attorneys who ignore conflicts in the name of representing their client. Who their client is in each sort of instance needs to be clarified. Attorney conflicts of interest are covered by their state's disciplinary rules, but (i) these rules are enforced by lawyers rather than city residents; and (ii) these rules do not deal with the special conflicts that city attorneys are faced with. I would like to see a discussion about it, including recommended provisions to deal with the problems practitioners, both lawyers and non-lawyers, have witnessed.

101. Transactional Disclosure.

To discuss this provision, click here.

1. Whenever an official or employee* has reason to believe that he or she should recuse himself or herself under 100(3) of this code, he or she must:

1. immediately refrain from participating further in the matter, formally or informally;
2. promptly inform the appropriate individual or body, pursuant to subsection 3 below, that he or she has a conflict; and
3. promptly file with the city clerk a signed statement disclosing the reasons for recusal or, if a member of a board or commission, state this information on the public record of that board or commission.

Comment: In subsection 1(c) and in 104(2) there are references to placing information on the public record. This appears to assume that municipal meetings have a published transcript or, at least, a recording, video or aural, that is available to the public. But especially in smaller cities and towns, and in less important meetings, this is not the case. How have cities dealt with this problem of not having a public record to place disclosures on? Is it required that minutes include all disclosures?

2. Whenever someone suggests or requests (privately or publicly) that an official or employee* recuse himself or herself under 100(3) of this code, and he or she chooses not to do so, he or she must promptly file with the city clerk a signed statement disclosing the reasons for refusing to recuse himself or herself or, if a member of a board or commission and if the suggestion was made publicly at a meeting of that board of commission, state this information upon the public record of that board or commission.

Comment: See the comment to 100(3) for more information.

3. An official or employee* is required to inform the appropriate individual or body pursuant to subsection 1b, as follows:

1. If a member of a board, commission, committee, or authority, inform the chair or the entire body at a public or executive session; if the chair, inform the secretary;
2. If not on such a body and appointed by the city manager/director of administration/mayor, inform the city manager/director of administration/mayor;
3. If an employee of the Board of Education, inform the Superintendent of Schools;
4. If the Superintendent of Schools, inform the chair of the Board of Education;
5. If an elected official, inform the mayor;
6. If a consultant,* inform the chair or head of the board, department, or agency that hired the consultant.

4. An official or employee* with an interest in a contract must disclose this interest prior to the first of any of the following events:

1. The solicitation of the contract.
2. The bidding of a contract.
3. The negotiation of a contract.
4. The approval of the contract.

5. An official or employee* need not file a disclosure statement pursuant to this section if he or she, with respect to the same matter, has, with respect to an interest in a contract with the city, filed a disclosure statement pursuant to this code.

Comment: Transactional disclosure provides specific disclosure when a conflict arises, that is, when an official or employee's personal relationship or interest actually creates a conflict with the public interest. It is at this point that it is most important that the official or employee seriously consider the effects of this conflict on his or her actions or judgment, as well as the effects on how his or her involvement would appear to the public if it knew about the conflict.

Subsection 3: These specific guidelines to informing of conflicts should be adapted to each city's particular form and structure.

102. Exclusions from the Code of Ethics and from Transactional Disclosure.

To discuss exclusions and waivers, click here.

The provisions of 100 and 101 of this code do not require recusal or transactional disclosure as a result of:

1. An action specifically authorized by statute, rule, or regulation of the State of __________ or of the United States.
2. A ministerial act*.
3. Gifts* (a) received by the official or employee* from his or her parent, spouse or domestic partner*, child or step-child, or sibling or step-sibling; (b) received by the official or employee, his or her spouse or domestic partner, child or step-child, parent, and member of his or her household*, from a person or entity (any person who works for or is otherwise related to an entity is considered as having given on behalf of that entity), having an aggregate value of $50 or less during any twelve-month period; or (c) accepted on behalf of the city and transferred to the city pursuant to 100(4)(b).
4. Gifts* or financial benefits* having a value of $50 or less that are received by a city official or employee for the solemnization of a marriage officiated by that official or employee at a place other than his or her normal public place of business and at a time other than his or her normal work hours.
5. Public awards from charitable organizations having a value of $100 or less.

Comments: Subsection 3 contains an annual dollar limit for gifts given to an official or employee plus his close relations. Many ethics codes' dollar limits are per gift, usually around $50, in the belief that taking an official out to lunch is acceptable. However, such a limit is easy to get around by giving lots of small gifts to officials and their relatives, which add up to large gifts over time. Another way around such a rule is to give large gifts that are naturally spread out over time, such as a restaurant or club tab, or season tickets. Other codes' gift rules contain many detailed instances and amounts, for such things as private or public or charitable functions. A simpler rule, with an annual limit, is more clear and therefore provides better guidance. I would like to hear people's opinions about this, as well as their experiences with the approaches: how successful they've been, how they've been enforced, etc.

103. Annual Disclosure.

To discuss this provision, click here.

1. Officials, Employees, and Others Who Are Required to File.

Those holding the following job titles or positions are required to file a signed annual disclosure statement:

1. Elected officials;
2. Department heads and those authorized to act on their behalf (e.g., first deputies);
3. Officials and employees* who hold policymaking positions, including members of municipal boards, such as ethics commissions, finance boards, planning and zoning boards, boards of zoning, buildings, and assessment appeals, wetlands and conservation boards, economic development boards, and parks and recreation boards;
4. Officials whose job descriptions or whose actual duties involve:
   
   1. The negotiation, authorization, or approval of contracts, leases, franchises, revocable consents, concessions, variances, special permits, or licenses;
   2. The purchase, sale, rental, or lease of real property, personal property, or services, or a contract for any of these;
   3. The obtaining of grants of money or loans; or
   4. The adoption or repeal of any rule or regulation having the force and effect of law;
   5. candidates for elected office;
   6. political party committee officers; and
   7. relatives of officials and employees who, pursuant to subsection 5(d) of this section, are required to file because they are employed by the city, but who would not otherwise be required to file.

2. Time and Place for Filing.

a. Annual disclosure statements (for the calendar year) are to be filed with the Ethics Commission:

(i) Within one-hundred-and-twenty days after the effective date of this section;

(ii) Within thirty days after taking one of the job titles or positions listed in subsection 1 of this section; and

(iii) No later than May 15 of each year thereafter.

b. For candidates for elected office:

(i) With the filing of the certificate of candidacy or declaration of intent.

(ii) No later than May 15 of each year thereafter. If an annual disclosure statement is overdue and is not filed within 20 days after the candidate receives from the Ethics Commission written notice of the failure to file, the candidate is considered to have withdrawn his or her candidacy.

3. Changes in Disclosed Information.

Within thirty days after a change in the information contained in his or her most recently filed annual disclosure statement, an official, employee, or candidate must file a signed amendment to the statement (as in subsection 2), indicating the change.

4. Contents of Annual Disclosure Statement.

The annual disclosure statement will include:

a. The location of any real property in the city, or within one mile of the boundary of the city, in which the person disclosing, or his or her relative*, has a financial interest*, and the type of financial interest.

b. With respect to each outside employer or business* of the person disclosing:

(i) Its name (if any);

(ii) The nature of its business;

(iii) If it is an entity, the type of entity;

(iv) The person disclosing's relationship to it, such as sole proprietor, owner, partner, official, director, member, employee, bondholder, or shareholder.

c. With respect to each outside employer or business* of the person disclosing's spouse or domestic partner*, the information required by paragraph (b) of this subsection.

d. The names and addresses of all relatives* employed by the city as employees, contractors, or consultants*, including relatives* who work for or are subcontractors of contractors, consultants*, or subcontractors.

e. Failure to disclose the information required by subsection 4 of this section with respect to a person disclosing's spouse or other relative* does not constitute a violation of that subsection if the person disclosing made a good faith effort to obtain the information and if he or she also sets forth those efforts in his or her disclosure statement.

5. Any person who is subject to the disclosure provisions of this and the following subsection is required to obtain and preserve, for a period of three years following the date of the relevant disclosure statement, all accounts, bills, receipts, and other documents necessary to complete and substantiate such disclosure statement. These documents will be made available for inspection upon request by the Ethics Commission or its agent after reasonable notice.

6. The Director of Finance must certify to the Ethics Commission, no later than May 15 of each year, a list of all business entities doing business with the city, currently bidding for business with the city, or that have done business with the city over the prior three years. This list will be made available to the public at no cost.

Comment: While less significant than transactional disclosure, annual disclosure does fill an important role in an ethics program. In particular, annual disclosure reveals potential conflicts of interest before they arise and thus alerts the official - and the citizenry - to those potential conflicts. Annual disclosure thereby provides a check on transactional disclosure and protects officials by identifying potential ethical pitfalls, which the official can then take steps to avoid.

Politicians often focus their condemnation of ethics codes on annual disclosure statements. They insist that forcing people to disclose their interests will prevent people from getting involved in city government. But the disclosure statements in this model code are far from what, say, U.S. Senators are required to file. No one is being asked to disclose how wealthy or poor they are. They are only being asked to say who their employer is (not what they're paid), what local companies they have financial interests in (not how big their interest is), what land they own in the municipality, and which of their relatives work for the city. The only people who will truly mind disclosing this information are those who have so many interests or involved relatives, or so much land in town, that they probably would face many conflicts of interest and, therefore, should probably not be involved in city government, except in areas that do not deal with businesses, developers, or contractors. After all, the biggest complaint people have about municipal governments is that they're run by local businessmen, developers, and contractors, those who represent them, and their relatives. This problem is only compounded when officials do not want to admit publicly what they do for a living.

Some cities will want to go beyond these minimal disclosure requirements, especially for senior officials. Such cities will want annual disclosure of all information directly relevant to the ethics code, including all interests, direct and indirect, that might conflict with government responsibilities (see 100(1) above). Major debtors and creditors may also be listed, as well as any applications made to the city during the year. It may be specified that the disclosure statement is being filed under oath.

Subsection 1: For the sake of clarity, each municipality should list the job titles or positions of the persons required to file annual disclosure statements.

Subsection 2: May 15 was chosen because it is one month after personal income tax returns are due, providing them with both fresh information and the time to prepare the disclosure statement.

Subsection 4: In the event a person disclosing, after a good faith effort, is unable to obtain the required information from an estranged spouse or from a relative, he or she need only set forth his or her efforts in the disclosure statement; there is no need to review land records.

Subsection 6: Information in disclosure statements is useful only if it can be checked against information. That is the purpose of this subsection: to allow the comparison of an official's business connections with a list of businesses that do business with the city.

Should failure to file a disclosure statement be a violation requiring a complaint to be filed, placing the burden on citizens or the ethics commission and requiring an investigation and hearing for a clear-cut violation? Or should the burden be on the person disclosing to file (at least a request for a 30-day extension), requiring from the ethics commission only a notice and a reasonable length of time before a stated penalty is automatically due?

There have been cases, such as in Rhode Island, where a large number of officials did not file disclosure statements, making it almost impossible for the ethics commission to take action against them all (it is my understanding that they chose to go after the governor first). A late fee and serious penalty for not filing would require officials to take the requirement seriously. I would like to know others' experiences with enforcement of annual disclosure.

104. Disclosure by Applicants.

To discuss this provision, click here.

1. When a person requests that the city, or a city official or employee*, take or refrain from taking any action (other than a ministerial act*) that may result in a financial benefit* to either any official or employee or to one of the other persons listed in 100(1) of this code, the person requesting must disclose the name of any such person or persons, to the extent of his or her knowledge at the time of the request.

2. If the request is made in writing, the disclosure must accompany the request. If the request is oral and made at the meeting of a public body, the disclosure must be set forth in the public record of the body. If the request is oral and not made at the meeting of a public body, the disclosure must be set forth in writing and filed with the city clerk, who will send a copy to the Ethics Commission.

Comment: An example of how this section works is that an applicant for a zoning variance is required to list the name of any city official or employee, or others listed in 100(1), who might benefit from the granting of the variance. Applicant disclosure provides a check on transactional and annual disclosure.

This section does not require that the applicant research which officials, if any, have an interest in the matter, but only requires that the applicant disclose the names of interested officials to the extent the applicant knows of the interest. Also, the section imposes no burden on the applicant to update the disclosure if the applicant later learns that certain officials have an interest in the application.

105. Advisory Opinions.

To discuss advisory opinions, click here.

1. Upon the written request of any official or employee*, including former officials and employees whose position was terminated within three years as well as people who intend to soon become an official or employee, the Ethics Commission must render, within ten days after the date of its next regular meeting, a written advisory opinion with respect to the interpretation or application of this code. Any other person or entity may similarly request an advisory opinion, but only with respect to whether his, her, or its own action might violate a provision of this code. If an earlier response is required, an informal verbal or e-mail opinion will be provided by the Ethics Officer. For more information about advisory opinions, see Section 209 of this code.

2. Any person or entity may request informal advice from the Ethics Officer about any situation, including hypothetical situations, but such advice is not binding and there are no time requirements. With respect to the ASPA Ethics Code, only informal advice may be requested.

Comment: For more information about advisory opinions, see 209, in the Administration part of this code. The Ethics Commission's other duties are set forth in the Administration part of this code, which is of interest to most people only in extreme situations. But all officials and employees, as well as many residents, will have occasion to take advantage of the Ethics Commission's or Ethics Officer's advice. And this is the Ethics Commission's most important responsibility. It is very important for local government officials and employees, whenever they are uncertain as to whether they should proceed with a matter, to immediately seek advice. This will prevent unethical conduct from occurring due to a lack of knowledge or understanding, and will create a series of precedents to guide officials and employees in the future.

To avoid burdening the Ethics Commission with requests for formal advisory opinions, especially due to the urgency with which these opinions need to be provided to people faced with pressing decisions, this code permits a private citizen to request a formal advisory opinion only as to the permissibility of his or her own conduct. Any official, on the other hand, may request an advisory opinion with respect to his own, a subordinate's, a superior's, or even a colleague's conduct. But anyone can request informal advice about any situation.

Usually, Ethics Officers work on a volunteer basis. They can be very helpful in providing quick advice before possible conflicts can cause problems. Ethics Commissions rarely meet often enough to provide timely advice, and town, city, and county attorneys rarely have the training, and rarely are unbiased enough, or seen as unbiased enough, to provide trustworthy advice. There is nothing worse than having an official told by a government attorney that he or she can do (or not do) something which, whether a violation of the ethics code or not, would undermine citizens' trust in their government officials. And yet this happens all the time. A truly neutral ethics officer can prevent this from happening.

Cities might also consider allowing ordinary citizens to request advisory opinions when they believe there is a difficult conflicts question, and the relevant official or employee will not discuss the problem.

106. Void Contracts.

To discuss penalties relating to contracts, click here.

Any contract, agreement, or other business transaction entered into by or with the city which results in or from a violation of any provision of sections 100 or 101 of this code is void, without further action taken, unless ratified by the city's legislative body in an open session held after applicable public notice. Such ratification does not affect the imposition of any penalties pursuant to this code or any other provision of law.

107. Penalties for Violation of This Code.

To discuss penalties and other relief, click here.

To discuss negotiating with unions regarding penalties that apply to employees, click here.

1. Resignation, Compensatory Action, Apology.

Violation of any provision of this code should raise conscientious questions for the official or employee* concerned as to whether resignation, compensatory action, or a sincere apology is appropriate to promote the best interests of the city and to prevent the cost - in time, money, and emotion - of an investigation and hearings.

Comment: An official should not compound ignoring a conflict of interest by again putting his or her personal interest ahead of the public interest by denying, obfuscating, or covering up what he or she knows to be true, or by, directly or indirectly, falsely accusing others of misconduct. An apology that includes sincere remorse and a willingness to make reasonable reparations restores respect and dignity, brings peace to personal and partisan rancor, assures the public that it is safe from further harm.

2. Disciplinary Action.

Any person or entity that is found to have engaged in action or inaction that violates any provision of this code may be reprimanded, suspended, or removed by the Ethics Commission, or the Ethics Commission may seek or impose any of the sanctions or remedies listed below or in 215.

Comment: Many cities do not choose to allow ethics commissions to suspend or remove officials and employees. This can be a special problem where the employee is covered by a collective bargaining agreement. Below is alternative language for such cities:

Any person or entity that is found to have engaged in action or inaction that violates any provision of this code may be reprimanded by the Ethics Commission. If the Ethics Commission recommends that the violator be suspended or removed from office or employment, or be subject to any other sanction or remedy authorized by law or collective bargaining agreement not listed in this section or in 215, the legislative body must choose, in an open session held after applicable public notice, whether and to what extent to impose such sanctions.

Requiring the legislative body to make a determination on the ethics commission's recommendation is very important, because otherwise a council majority could prevent the matter from being debated (or they could dispose of it secretly in executive session).

An alternative approach is to make it more clear what sort of violation of this code can lead to suspension or removal, and to require a supermajority, as in the following language:

The Ethics Commission may suspend or remove a respondent from office, or employ other sanctions or remedies authorized by law or collective bargaining agreement not listed in this section or in 215. To suspend or remove a respondent, the violation must have been committed either with (i) fraudulent intent to secure the unjust enrichment of the respondent or another person or (ii) malicious intent to inflict pecuniary or other substantial injury upon another person. A respondent can be suspended or removed only by the vote of four members of the Ethics Commission.

Two important limitations on an ethics commission suspending or removing employees must be taken into account: (i) union rules and procedures; and (ii) civil service rules and procedures. Since these vary greatly, each city must determine how to take these into consideration without undermining the Ethics Commission's enforcement powers, especially with respect to elected and appointed officials who are neither union members nor civil service employees (and most ethics proceedings involve such officials). Protection of union and civil service prerogatives can be used a way to take enforcement power out of the Ethics Commission's hands. Please share your experiences with union and civil service conflicts with ethics enforcement.

When politicians do give this power to an Ethics Commission, especially one not of their choice, it makes a strong commitment to a neutral, non-politicized ethical environment and sends a clear message to people in the city government and to those who work with it.

Please also share your experiences with ethics commissions that do have the power to suspend or remove employees, as well as with situations where this power is reserved to the legislative body or other individuals or bodies.

3. Civil Fine.

Any person or entity that violates any provision of this code may be subject to a civil fine of up to $2,000 for each violation, payable to the city. A civil fine may be imposed in addition to any other penalty authorized by this code or by law, other than a civil forfeiture pursuant to subsection 5 of this section.

4. Damages.

Any person or entity that violates any provision of this code is liable in damages to the city for any losses or increased costs incurred by the city as a result of the violation. Such damages may be imposed in addition to any other penalty authorized by this code or by law, other than a civil forfeiture pursuant to subsection 5 of this section.

5. Civil Forfeiture.

Any person or entity that intentionally or knowingly violates any provision of this code is subject to a civil forfeiture to the city of a sum equal to three times the value of any financial benefit* he, she, or it received as a result of the conduct that constituted the violation. A civil forfeiture may be imposed in addition to any other penalty authorized by this code or by law, other than a civil fine pursuant to subsection 3 or damages pursuant to subsection 4 of this section.

108. Debarment.

To discuss penalties relating to contracts, click here.

1. Any person or entity that intentionally or knowingly violates any provision of this code is prohibited from entering into any contract, other than an employment contract, with the city for a period not to exceed three years.

2. Nothing in this section may be construed to prohibit any person or entity from receiving a service or benefit, or from using a facility, which is generally available to the public.

3. Under this section, a corporation, partnership, or other entity is not vicariously liable for the actions of an employee. A corporation, partnership, or other entity is not debarred because of the actions of an employee unless the employee acted in the execution of company policy or custom. A store, region, division, or other unit of an entity is not debarred because of the actions of an employee of that unit unless the employee acted at the direction, or with the actual knowledge or approval, of the manager of the unit.

109. Injunctive Relief.

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1. Any resident, official, or employee of the city may initiate an action or special proceeding, as appropriate, in a court of appropriate jurisdiction for injunctive relief to enjoin any person or entity from violating this code or to compel any person or entity to comply with the provisions of this code. In lieu of, or in addition to, injunctive relief, the action or special proceeding, as appropriate, may seek a declaratory judgment.

2. No action or special proceeding may be prosecuted or maintained pursuant to subsection 1 of this section, unless (a) the plaintiff or petitioner has filed with the Ethics Commission a sworn complaint alleging the violation, (b) it is alleged in the complaint or petition filed with the court that at least six months have elapsed since the filing of the complaint with the Ethics Commission, and that the Ethics Commission has failed to issue a determination in the matter, and (c) the action or special proceeding is filed within ten months after the alleged violation occurred.

Comment: This section addresses the failure of the Ethics Commission to act on a matter before it. When the Ethics Commission does act within the period prescribed by subsection 2, the remedy of the aggrieved party (the complainant or the alleged violator) lies in a proceeding to review the commission's determination (see 216). If the Ethics Commission files a determination in the matter after the 109 suit has been filed, the matter should proceed as a review proceeding, provided that the plaintiff or petitioner is aggrieved by the Ethics Commission's determination.

110. Whistle-Blower Protection.

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1. Neither the city nor any person, including officials and employees*, may take or threaten to take, directly or indirectly, official or personal action, including but not limited to discharge, discipline, personal attack, harassment, intimidation, or change in job, salary, or responsibilities, against any official, employee, or other person (or against any member of their family) because that person, or a person acting on his or her behalf, (a) reports, verbally or in writing, or files a complaint with the Ethics Commission regarding an alleged violation of this code, or (b) is requested by the Ethics Commission to participate in an investigation, hearing, or inquiry, or is involved in a court action relating either to the alleged violation or to evidence presented or given as part of an Ethics Commission investigation or hearing. The provisions of this section are not applicable when the complainant, witness, or reporter of a violation made accusations or other statements that were malicious and false. A violation of this section is a violation of this code.

2. Anyone who alleges a violation of subsection 1 may bring a civil action for appropriate injunctive relief, or actual damages, or both within ninety days after the occurrence of the alleged violation. A court may order reinstatement of the plaintiff to such a suit, or the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the plaintiff all or a portion of the costs of litigation, including reasonable attorney fees and witness fees. The initiation of such litigation is not a violation of the confidentiality provisions in 100(8) or 213(9).

Comment: Without whistle-blower protection, city employees - the people who best know what is going on in the city government - will be unlikely to come forward with reports of ethics code violations. It is difficult enough to betray the strong feelings of loyalty that exist in most workplaces, and almost impossible when speaking out endangers your job and pension. With whistle-blower protection, city officials will know their violations might be reported and, therefore, will be more likely to act consistent with the code (that is, their personal interest in protecting themselves will be closer to the public interest in their acting fairly and impartially).

111. Definitions.

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To discuss whether some provisions should apply only to certain officials, click here.

Unless otherwise stated or unless the context otherwise requires, when used in this code:

1. To "appear" or "appear before" means to communicate in any form, including, without limitation, personally, through another person, by letter, or by telephone. This definition also applies to the noun form, "appearance."

2. "Consultant" means an independent contractor or professional person or entity engaged by the city and in a position to influence a city decision or action, or have access to confidential information.

3. "Customer or client" in 100(1)(e) means (a) any person or entity to which a person or entity has supplied goods or services during the previous twenty-four months, having, in the aggregate, a value greater than $1,000, or (b) any person or entity to which an official or employee's* outside employer or business* has supplied goods or services during the previous twenty-four months, having, in the aggregate, a value greater than $1,000, but only if the official or employee knows or has reason to know the outside employer or business supplied the goods or services.

4. "Domestic partner" is an adult, unrelated by blood, with whom an unmarried or separated official or employee* has an exclusive committed relationship, maintains a mutual residence, and shares basic living expenses.

5. "Financial benefit" includes any money, service, license, permit, contract, authorization, loan, travel, entertainment, hospitality, gratuity, or any promise of any of these, or anything else of value. This term does not include campaign contributions authorized by law. A "financial interest" is a relationship to something such that a direct or indirect financial benefit has been, will be, or might be received as a result of it.

6. A "gift" is a financial benefit* received or given without equivalent compensation. However, a financial benefit* received or given on terms available to the general public is not a gift.

7. "Household" includes anyone whose primary residence is in the official or employee*'s home, including non-relatives* who are not rent payers or servants.

8. An "interest in a contract" is a relationship to a contract such that a direct or indirect financial or other material benefit* has been, will be, or might be received as a result of that contract. The official or employee* does not need to be a party to the contract to have an interest in it. Indirect benefit includes a benefit to the official's family or outside business or employer.

9. "Ministerial act" means an action performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the act. An example of a ministerial act is the granting of a marriage license by a city clerk.

10. "Official or employee" means any official or employee of the city, whether paid or unpaid, and includes all members of an office, board, body, advisory board, council, commission, agency, department, district, administration, division, bureau, committee, or subcommittee of the city. "Official or employee" does not include:

(a) A judge, justice, or official or employee of the court system;

(b) A volunteer fire fighter or civil defense volunteer, except a fire chief or assistant fire chief; or

(c) A member of an advisory board if, but only if, the advisory board has no authority to implement its recommendations or to act on behalf of the city or to restrict the authority of the city to act.

11. "Outside employer or business" includes:

(b) any entity, other than the city, of which the official or employee* is a member, official, director, or employee, and from which he or she receives compensation for services rendered or goods sold or produced;

(c) any entity located in the city or which does business with the city, in which the official or employee* has an ownership interest, except a public corporation in which the official or employee's ownership interest is the lesser of (i) stock valued at less than $50,000 or (ii) five percent of the outstanding stock; and

(d) any entity to which the official or employee* owes, or by which the official or employee is owed, more than $10,000, either in the form of a note, a bond, a loan, or any other financial instrument.

For purposes of this definition, "compensation" does not include reimbursement for necessary expenses, including travel expenses..

12. "Personal benefit" includes benefits other than those that are directly financially advantageous. These include financial benefits* to relatives*, business associates, and others listed in 100(1), as well as non-financial benefits to these people and to oneself, including such things as reputation and the success of one's career. A "personal interest" means a relationship to something such that a personal benefit has been, will be, or might be obtained by certain action or inaction with respect to it.

13. "Relative" means a spouse, child, step-child, brother, sister, parent or step-parent, or a person claimed as a dependent on the official or employee's* latest individual state income tax return.

14. "Subordinate" means another official or employee* over whose activities an official or employee has direction, supervision. or control.

Comment: Subsection 3 ("customer or client"): An employee of a large corporation may not know many of the customers or clients of his or her employer and should not be penalized for that understandable ignorance. For that reason, the "knows or has reason to know" language is included.

Subsection 6 ("gift"): A "financial transaction -- on terms not available to the general public" includes, for example, a reduced-interest loan to a municipal official. The reduction in interest would constitute a gift.

Subsection 11(c)("outside employer or business"): It is sometimes said that stock ownership in a public company is not relevant to an official's interests, because he or she owns a tiny percentage of the stock and therefore has no control over the entity. But the success of the public company does have special meaning to someone who holds a large dollar amount of that company's stock (even if that amount is large only for the individual, not for the corporation) and, therefore, it does constitute an interest that could get in the way of an official's ability to act impartially (as well as the perception of how the official would benefit from the company's success).

The amount of share holdings will not be disclosed, but since there is a minimum amount, it will be clear that any disclosed share holding is sizeable. Therefore, some cities may want a lower threshold amount, so that it is not clear whether a shareholding is large or small.

Subsection 12 ("personal benefit"): Many ethics codes require the expenditure of funds even with respect to personal benefits. But this requirement allows officials to vote, say, on whether they should have to recuse themselves, when a committee member raises the issue at a meeting. Non-financial interests, such as reputation, are very important to people and have an equally powerful effect on their ability to make impartial decisions. I would like to hear about examples of personal benefits you feel should be included as giving rise to a possible conflict of interest, and how you have seen such personal benefits dealt with when they are and when they are not covered by ethics codes.

Subsection 13: Some cities follow the IMLA Model Code by defining "relatives," generally or in such instances as gift-giving, as anyone within up to the fifth degree of consanguinity. I feel that this term is inappropriate to an ethics code because of its unfamiliarity, its difficulty, and its common usage in law (determining incest). To be in the fifth degree of consanguinity, two individual's first common ancestor must be no more than a total of five generations away. For example, if my grandfather (two degrees) is your great-grandfather (three degrees), there are five degrees of consanguinity between us. In law, because consanguinity is for the purpose of defining incest, it does not include relationship by marriage. However, relationship by marriage is relevant in government ethics.

Throughout this code there are stars next to defined words. If this usage is followed and the code is placed on a city's website, these stars should be turned into links to the Definitions section, so that the definitions can be easily consulted.

Part B: Administrative Provisions

201. Duties of City Clerk.

The City Clerk must maintain on file for public inspection and, with respect to disclosure statements, index in alphabetical order by the last name of the relevant official, employee, candidate, or applicant the following documents:

(1) A copy of the code of ethics and amendments thereto;

(2) A statement that the city has established an Ethics Commission, and its composition;

(3) A copy of the form of annual statement of financial disclosure;

(4) A list of the names and offices, or positions, of all officials and employees required to file annual disclosure statements;

(5) Copies of all transactional, applicant, and annual disclosure statements filed pursuant to this code.

202 Maintenance of Disclosure Statements.

1. The City Clerk must transmit promptly to the Ethics Commission copies of each transactional and applicant disclosure statement filed pursuant to sections 101, 103, and 104 of this code.

2. The Ethics Commission must index and maintain on file for at least seven years all disclosure statements filed with it pursuant to sections 101, 103, and 104 of this code..

203 Ethics Commission: Establishment; Qualifications of Members; Appointment of Members; Term of Office.

To discuss the establishment and role of ethics commissions, click here.

1. There is hereby established an Ethics Commission consisting of five members, plus two alternate members. All members and alternate members must be residents of the city.

2. No member of the Ethics Commission may be, or have been within the three years prior to appointment, an appointed official or employee* of the city. Nor may a member of the Ethics Commission hold office in a political party or be employed or act as a lobbyist. An Ethics Commission member may make campaign contributions but may not participate in any election campaign.

3. Of the regular membership of the Board, no more than two may be registered in the same political party, and at least one must be registered as unaffiliated. The alternate members may not be registered in the same political party.

4. Within sixty days after the effective date of this code, and no later than December 31 each year thereafter, the city's legislative body will appoint the members of the Ethics Commission from a list of nominees prepared by the local branch of the League of Women Voters.

Comment: Subsection 1: Five is not a magic number for an ethics commission. In large cities, if there is a lot of activity, it would be best to have a larger number of members, and then allow, say, five-member panels for proceedings, and three-member panels for advisory opinions. When there is little activity, it is often difficult to get a quorum at ethics commission meetings, so it is best to keep the number of members low. This is especially important since an ethics commission may only act by the majority vote of its total membership, not just those members who attend a meeting.

Subsection 2: There are constitutional problems with excluding elected officials from ethics commissions, but it is a terrible idea to have an elected or appointed official on a commission that is supposed to be independent and without its own conflicts of interest. It undermines the spirit of the ethics code.

The restriction on municipal officials and employees, and lobbyists and party officers, serving on ethics commissions seeks to ensure that the board is as free as possible from pressure from other officials, co-workers and superiors alike.

Subsection 3: The restriction on the political make-up of the board aims to strengthen both the perception and the reality of a board that is not partisan. Ethics commissions must not become political footballs, because this will undermine trust in them and cause people not to file complaints or seek advisory opinions, nor to have faith in their determinations. For the same reason, this code restricts the political activities of ethics commission members.

Subsection 4: The idea of having a nonpartisan civic organization select a city's ethics commission is unusual, but there are not many alternatives to preventing such a commission from being (and appearing) political or to ensuring that either party cannot block a member of its party from being disciplined or from getting no more than a reprimand. Another alternative is to require that each member be selected by unanimous vote of the legislative body, but this would still allow the parties to trade votes and make the same selections the two party committees would have made (or in fact did make). An ethics commission should be as nonpartisan, and without its own conflicts, as possible, and answerable to no one. Only a nonpartisan body can ensure this, at least on a city level (that is, without having a regional or state commission handle city ethics matters; see the next comment for more on this). In any event, instead of politicians (or even a nonpartisan civic organization) selecting only people they know, a vacancy on an ethics commission should be widely publicized, and citizens who are not politically involved should be encouraged to apply.

Smaller municipalities may choose to form joint or regional ethics commissions or to contract out their ethics commission to another municipality. Since, in towns, most politically active residents have personal biases and relationships with those most likely to be brought before an ethics commission, a regional ethics commission can provide a truly neutral, independent solution. The decisions of a regional ethics commission will demand much more respect and make people more certain that ethical