Model Code

This is the place to comment on and discuss the hearing process for proceedings before the Ethics Commission. The assumption here is that such proceedings are public after a finding of probable cause. The discussion of whether or not they should be public is elsewhere.

214. Public Hearing Process.

1. After a finding of probable cause, the Ethics Commission must hold one or more public hearings, and the first public hearing must commence within thirty days after the finding of probable cause. The goal of these public hearings is to determine whether or not a violation of the Code of Ethics has occurred. The hearings will be held with reasonable promptness, with the last hearing to be held not more than one-hundred-and-eighty days after the finding of probable cause.

2. Any person who is, in the opinion of the Ethics Commission, adversely affected by comments made during a hearing, may testify in response at a hearing, directly or through a representative.

3. The Ethics Commission may refer the matter to an authority or person or body authorized by law to impose disciplinary action pursuant to applicable law or collective bargaining agreement or, if it determines there are possible criminal violations, to the appropriate prosecutor.

4. Extension of time.
Under extraordinary circumstances, extensions of time to any of the time limitations specified in this section may be granted by the Ethics Commission upon a vote of four sitting members. However, in no event may the total modified time period, i.e., the original time period plus the extension(s), exceed double the time period prescribed by this code.

a. The Ethics Commission must give written notice of any extension(s) of time to the respondent and the complainant.

b. Exceptions.

(1) No extensions may be given for time periods required for notification.

(2) No extensions may be given for the time limitation for ruling on actions, unless otherwise specified in this code.

5. Rules and Procedure for Public Hearings.
a. Public hearings will be conducted under the Ethics Commission's rules and regulations, subject to any applicable provisions of law and collective bargaining agreements. The rules and regulations will include the following: oral evidence will be taken under oath; documentary evidence may be received in the form of copies or excerpts, if the original is not readily available and, upon request, parties and the Ethics Commission will be given the opportunity to compare the copy to the original; the state's administrative rules of evidence, rather than strict rules of judicial evidence, will be followed, to allow a liberal introduction of testimony and documentary evidence; and the complainant and respondent have the right:

(1) To be represented by counsel.

(2) To present oral or written documentary evidence which is not irrelevant, immaterial, or unduly repetitious.

(3) To examine and cross-examine witnesses required for a full and true disclosure of the facts.

b. The Ethics Commission may subpoena, and its members may question verbally or in writing, witnesses to testify and may compel production of documents and other effects as evidence, and failure to obey such subpoena shall constitute a misdemeanor.

c. At all hearings relating to a complaint, a court stenographer will record the proceedings.

d. Upon the request of either the complainant, the respondent, or any member of the Ethics Commission, the Ethics Commission will cause the hearings to be tape-recorded or filmed, and a transcript to be made. If this is requested by either a respondent or complainant, the requesting party will bear the costs.

6. With respect to the public hearing process, the Ethics Commission will follow the requirements of Freedom of Information legislation.

This is the place to discuss penalties involving contracts. There are two in the Model Code: automatic voiding of contracts upon a finding of a violation of the Code, and debarment of persons and entities from entering into other contracts with the municipality after violating the Code.

Do you think these penalties are too harsh? Are there other appropriate penalties involving contracts? Please share your opinions as well as your experiences with these penalties or experiences where these penalties were not available?

106. Void Contracts.

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.

108. Debarment.

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.

215(9). Debarment.

If the Ethics Commission finds that a person or entity has intentionally or knowingly violated any provision of this code, that person or entity is prohibited from entering into any contract with the city for a period not to exceed three years, pursuant to 108 of this code.

This is the place to share your opinions of and experiences with judicial review of Ethics Commission decisions. For example, who should be able to seek judicial review: complainants, respondents, other interested parties, anyone? Are there situations where judicial review is inappropriate, too expensive (where there is nothing but a reprimand)? Should there be judicial review of alleged procedural irregularities?

216. Judicial Review.

Any person or entity aggrieved by a decision of the Ethics Commission may seek judicial review and relief pursuant to ----- of [state law].

The Model Code makes Ethics Commission investigations confidential. However, upon a finding of probable cause, Ethics Commission proceedings become public. In addition, disclosure statements, advisory opinions, waiver requests, and documents filed in Ethics Commission proceedings are public.

Please share your opinions on and experiences with the confidentiality vs public nature of Ethics Commission proceedings and documents. What problems are created by each, and why are each of them important? How does a community balance the two?

217. Public Inspection of Records; Public Access to Meetings.

1. Unless otherwise stated in this code, the records of the Ethics Commission will be available for public inspection. Records available for public inspection include all disclosure statements, advisory opinions (with names and other necessary details omitted to protect anonymity, unless the requesting party states otherwise in writing), all requests for waivers and related papers and decisions, and all papers filed and all decisions made in an Ethics Commission proceeding after a finding, formally or presumed, of probable cause.

2. After a finding, formally or presumed, of probable cause, all hearings before the Ethics Commission concerning alleged misconduct will be open to the public. All meetings, or parts of meetings, of the Ethics Commission that are not directly related to an investigation or other consideration of complaints prior to a finding of probable cause will be open to the public.

This is the place to comment on the penalty provisions of the Model Code, to recommend alternative penalties, to share experiences with various penalties and the lack of certain penalties, and to discuss the advantages and disadvantages of various penalties. For example, please share your experiences with ethics commissions that 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. There are other specific issues raised in the comments to these provisions.

This forum does not include penalties relating to contracts, such as voiding contracts and debarment, which are dealt with in another forum.

The provisions here come from both of the principal sections of the Model Code: Ethics Provisions and Administration. The reason that many of these provisions are duplicated is that they are the part of the administration and enforcement process that are most significant to those not bringing complaints or having complaints brought against them. It is important that everyone know what can happen to someone who violates the ethics code.

107. Penalties for Violation of This Code.

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:

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 107. 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.

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. However, a civil fine may not be imposed for a violation of 100(9) of this code.

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. Civil forfeiture is not available for a violation of 100(9) of this code.

109. Injunctive Relief.

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.

215. Finding of Violation; Penalties; Injunctive Relief.

1. Disciplinary Action.
Within thirty days after the last hearing, the Ethics Commission will determine whether to dismiss the complaint or, upon a finding of a violation of this code, to take appropriate disciplinary action pursuant to 107 of this code, or to recommend disciplinary action to the legislative body in circumstances where such action is required by 107(2) or by this section.

2. Finding a Violation.
A finding of a violation of this code requires the affirmative vote of three members of the Ethics Commission that there is clear and convincing evidence that the respondent has violated this code. Any member not present at all public hearings and deliberations may not vote. The written final decision must specify the code sections violated and provide a factual explanation supporting each violation or, if no violation is found, findings of fact and the reasons for dismissal. When determining the appropriate penalty, the following should be considered: the severity of the respondent's offense; the position and responsibilities of the respondent; the presence or absence of any intention on the part of the respondent to conceal, deceive, or mislead; whether the violation was deliberate, negligent, or inadvertent; and whether the incident was isolated or part of a pattern. The Ethics Commission must file its memorandum of decision with the City Clerk, and send it to the complainant and respondent, within ten days after it votes.

Comment: "Clear and convincing evidence" is only one possible basis on which to find a violation. Please provide information about other bases and your feelings about and experiences with them.

3. Reprimand or Civil Fine.
The Ethics Commission, on behalf of the city, may reprimand any person or entity it finds has violated this code, or it may impose on such person or entity a civil fine as provided in subsections 2 and 3 of 107 of this code.

4. Damages.
The Ethics Commission, on behalf of the city, may initiate an action in the court of appropriate jurisdiction to obtain damages, as provided in subsection 4 of 107 of this code.

5. Civil Forfeiture.
The Ethics Commission, on behalf of the city, may initiate an action or special proceeding, as appropriate, in the court of appropriate jurisdiction to obtain civil forfeiture, as provided in subsection 5 of 107 of this code.

6. Injunctive Relief.
The Ethics Commission, on behalf of the city, may order a violator to cease and desist the violation if the violation is still ongoing, or it may initiate an action or special proceeding, as appropriate, in the court of appropriate jurisdiction for injunctive relief to enjoin a violation of this code or to compel compliance with this code. The Ethics Commission may also order a violator of a disclosure requirement to file an unfiled disclosure statement or to add information to a filed disclosure statement.

7. Suspension and Removal from Office.
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 107.

Comments: See comments to 107(2) for two alternative approached to suspension and removal from office, as well as comments re union and civil service conflicts.

8. Prosecutions.
The Ethics Commission may refer possible criminal violations to the appropriate prosecutor. Nothing contained in this code may be construed to restrict the authority of any prosecutor to prosecute any violation of this code or of any other law.

9. Debarment. [Dealt with the forum "Penalties Involving Contracts"]
If the Ethics Commission finds that a person or entity has intentionally or knowingly violated any provision of this code, that person or entity is prohibited from entering into any contract with the city for a period not to exceed three years, pursuant to 108 of this code.

10. Limit on Ethics Commission.
Nothing in this section may be construed to permit the Ethics Commission to take any action with respect to any alleged violation of this code, or of any other law, by the Commission or by any of its members or full-time staff members.

11. Penalties imposed by the Ethics Commission are exclusive of, and not affected by, each other or any other penalties imposed pursuant other laws or policies.

Comment: Some cities require their ethics commissions to file suits through the city attorney's office. The problem with this approach is that it brings a political element into enforcement by allow the city attorney's office to choose whether or not to file a suit or, if it does, to determine how to proceed and the amount of resources to devote to the matter. Since the city attorney is generally appointed and supervised by an individual or body that often has a special interest in the outcome of the matter, the city attorney often has a conflict of interest: does he or she act in the interests of a supervisor (loyalty and self-interest) or in the public interest (pursuing violators of the ethics code, but not for political reasons). It is better for the ethics commission to work through counsel that is working for it alone.

This is the place to comment on the Model Code's miscellaneous provisions, and to suggest different language as well as additional provisions.

218. Miscellaneous Provisions.

1. No existing right or remedy may be lost, impaired, or affected by reason of this code.

2. Nothing in this code may be deemed to bar or prevent a present or former city official or employee* from timely filing any claim, account, demand, or suit against the city on behalf of himself or herself or any member of his or her family arising out of personal injury or property damage or any lawful benefit authorized or permitted by law.

3. Any law of any sort - local, state, or federal - that requires a higher, greater, more exacting, or more restrictive standard of conduct than is provided in this code prevails over the provisions of this code and continues in full force and effect with respect to those covered by this code.

219. Distribution and Posting.

1. Within ninety days after the effective date of this section, and thereafter as appropriate, the Ethics Commission will transmit to the [chief executive official] of the city, in a form suitable for posting, those provisions of this code which the Ethics Commission deems necessary for posting. Within thirty days after receipt of those copies, the [chief executive official] must cause the copies of these provisions to be posted conspicuously in every public building under the city's jurisdiction.

2. Within ninety days after the effective date of this section, and thereafter as appropriate, the Ethics Commission will transmit to the [chief executive official] of the city, in a form suitable for distribution, a copy of this code. Within thirty days after receipt of this copy, the [chief executive official] must cause the copies to be distributed to every official and employee, to every contractor with the city, and to all city consultants*, and must make the code readily available to the public by placing a copy on the city website and copies in the city libraries and the office of the City Clerk.

3. Every official or employee* elected or appointed thereafter must be furnished a copy of this code within ten days after entering upon the duties of his or her position. Each official employee, present and future, must within thirty days of receipt sign a statement that he or she has read and understood the code's provisions, and must file that statement with the Ethics Commission. In addition, such a statement should be signed and filed with the Ethics Commission every year on January 31 or, if filing an annual disclosure statement, accompanying that statement.

4. Failure of the city to comply with the provisions of this section or failure of any official or employee* to receive a copy of the provisions of this code shall have no effect on the duty of compliance with this code or on the enforcement of its provisions.

220 Liberal Construction of Code.

The provisions of this Code are to be construed liberally, to the end that the public interest be fully protected, and they are to be construed in a manner consistent with all applicable federal and state laws and applicable provisions of the City Charter.

221 Severability.

If any provision of this Code is held by any court, or by any federal or state agency of competent jurisdiction, to be invalid as conflicting with any federal, state, or City Charter provision, or is held by such court or agency to be modified in order to conform to the requirements of such provision, the conflicting provision of this Code is to be considered a separate, independent part of this Code, and such holding shall not affect the validity or enforceability of this Code as a whole or any part other than the part declared to be invalid.

222. Effective Date.

This law will take effect immediately upon filing in the office of the Secretary of State and in compliance with all applicable provisions of law.