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Penalties

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:

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 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.

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. 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.

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Robert Wechsler says:

This model code places most enforcement power in the hands of the Ethics Commission. But many, if not most municipal ethics commissions are toothless. They can only recommend penalties or, at most, reprimand violators.

This means not only that politically interested people make decisions involving enforcement, but also that the Ethics Commission is dependent on these people and has no authority to act if the council, city attorney, or whoever fails to act.

Such a problem appears to be occurring at the state level in Alabama. The Ethics Commission, according to an article in the Huntsville Times, can only find probable cause and then turn the matter over to the Attorney General's office (and, sometimes, to district attorneys). The EC director insists that the AG is not acting on the matters turned over to it. The AG pooh-poohs the idea, and yet nothing seems to be happening.

No EC should be dependent on who happens to be sitting on the council or in the position of city or town attorney.

Robert Wechsler
Director of Research, City Ethics
[email protected]

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