Enforcement of Ethics Code

This is the place to discuss negotiating with unions regarding penalties that apply to their municipal employee members. This is a sensitive area, where open discussion could be especially helpful to preventing friction by considering union perspectives and requirements as part of the process of preparating or amending an ethics code.

This is the place to discuss the protection from mistreatment by superiors of municipal employees who file complaints or act as witnesses in ethics proceedings. Significant issues include the need and effectiveness of such protection, and the language necessary to make it effective as well as to prevent officials and employees from hiding behind it to make political attacks. Please share your experiences with various sorts of whistle-blower protection, as well as with instances where the lack of it has made a serious difference.

110. Whistle-Blower Protection.

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(10) or 213(9).

Comments: 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).

This is the place to raise and discuss issues involving the filing of a complaint regarding an alleged violation of the Code, and the ensuing investigation.

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].