HomeMy WebLinkAboutORD 2009-39 - EthicsORDINANCE t O C
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WHEREAS, in 2004 the City Council of the City of Georgetown adopted an Ethics
Ordinance, which was codified as Chapter 2.20 of the City Code of Ordinances; and
WHEREAS, on July 8, 2008, the City Council directed that the members of the
City's Ethics Commission work with staff and discuss with interested parties any
revisions to the City's Ethics Ordinance; and
WHEREAS, the Ethics Commission reviewed the Ethics Ordinance, as well as
the By-laws of the Ethics Commission and the Hearing Procedures, at its meetings on
March 26, April 29, and May 6, 2009 and recommended certain revisions to these
documents; and
WHEREAS, on June 23, 2009, the Ethics Commission presented its
recommendations for amendments to the Ethics Ordinance, Bylaws, and Hearing
Procedures to the City Council; and
WHEREAS, the City Council adopted the suggested revisions to the Bylaws and
Hearings Procedures, and directed staff to bring back an ordinance that incorporates
the changes to the Ethics Ordinance; and
WHEREAS, the Ethics Commission recommended the following revisions to the
Ethics Ordinance:
1. Change the term "Substantial Interest" to "Substantial Financial Interest"
and reformat the definition so that its sub -parts are easier to read;
2. Change the term "Economic Interest" to "Substantial Economic Interest"
and add verbiage clarifying the meaning of that definition;
3. Change the term "Ethics Review Commission" to "Ethics Commission";
4. Delete the definition of "Indirect Ownership" because it was an unused
term;
5. Change the definition of "Source of Income" to add references to salaries
and fees and to delete references to candidates;
6. Clarify that conflict of interest affidavits must be filed with the City
Secretary and included in the minutes of the body;
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Ethics Ordinance Revisions 2009
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7. Deleting references to clients, employers, parents, stepchildren and
spouses from the list of persons whose Substantial Economic Interest can be imputed
to a City Official;
8. Allowing the engagement of a financial professional and other
professionals to assist the Ethics Commission in its review of a case;
9. Clarifying the role of the City Attorney and describing course of action in
case of conflict of interest; and
10. Clarifying when the Ethics Commission is to receive copies of complaints,
responses, and other documentation; and
11. Capitalizing defined terms.
NOW, THEREFORE,ORDAINED COUNCIL OF THE CITY
OF GEORGETOWN,
SECTION 1: Existing Chapter 2.20 of the Code of Ordinances of the City of
Georgetown is hereby amended to provide as follows (deletions shown in
, additions shown in underline).
't 1 1' �' 4 • � 'i`
A. It is the policy of the City that the proper operation of democratic
government requires City Officials to be independent, impartial, and
responsible; and that no City Official permit any interest, financial or
otherwise, direct or indirect, or engagement in any business,
transaction, or professional activity to conflict with the proper
discharge of duties in the public interest; that governmental
decisions and policies be made in the proper channels of the
governmental structure; that public office not be used for illegal or
improper personal gain; and that City Officials shall at all times
strive to avoid even the appearance of impropriety or partisanship.
The City Council shall be maintained as a nonpartisan body.
B. This Chapter has four purposes:
1. to establish high ethical standards in official conduct by City
Officials;
2, to establish guidelines for ethical standards of conduct for all
City Officials ;
3, to require disclosure by City Officials of private financial or
other interests in matters affecting the City; and
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4. to provide discipline for those who violate this Chapter.
C. The City recognizes that City Officials are also members of society
and, therefore, cannot and should not be without any personal and
economic interest in the decisions and policies of government; that
City Officials retain their rights as citizens to interests of a personal
or economic nature and their rights to publicly express their views
on matters of general public interest. It is not the intent of this
Chapter to diminish the rights of City Officials as citizens of the
community.
D. The provisions of this Chapter do not apply to political contributions,
loans, expenditures, reports, or regulation of political campaigns or
to the conduct of candidates in campaigns.
E. This Chapter defines two types of conflicts of interest and treats
them differently. A "Substantial Financial Interest" follows Section
171.002 of the Texas Local Government Code, and the provisions
applicable to local Public Officials who have a "Substantial
Financial Interest" are set forth in Chapter 171 of the Texas Local
Government Code. This Chapter is intended to go beyond the
requirements of Chapter 171 of the Texas Local Government Code
by addressing "Substantial Economic Interests." A Substantial
Economic Interest is more comprehensive than a "Substantial
Financial Interest" and covers various kinds of economic benefits
that might accrue to a City Official that are not included in the
Texas statute.
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For the purposes of this Chapter the following definitions apply.
A. Business Entity means a sole proprietorship, partnership, firm,
corporation, holding company, joint-stock company, receivership,
trust, or any other entity recognized by law.
B. City Official means the Mayor, every member of the City Council,
the City Manager, the City Secretary, the City Attorney, and all
members of any commission, committee, or board appointed by the
City Council.
C. Confidential Information means any information that a City Official
would be privy to because of the official's position but otherwise is
not available to the public under the provisions of the Texas Public
Information Act (Tex. Gov. Code ch. 552).
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Ethics Ordinance Revisions 2009
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D. Economic Benefit means any money, Property, contract rights,
sale, lease, option, credit, ban, discount, service, or other tangible
or intangible thing of value, whether similar or dissimilar to those
enumerated.
E. Family Member means the spouse, parent or child, and the parents
of a spouse. (See Exhibit "A")
F. Gift means a favor, hospitality, or Economic Benefit other than
compensation but which does not include campaign contributions
reported as required by state law, gifts received from a relative if
given on account of kinship, or any value received by will, intestate
succession, or as a distribution from an inter vivos or testamentary
trust
G. Income means Economic Benefit received.
H, Property means real estate, personal items, equipment, goods,
crops, livestock, or an equitable right to income from real estate,
personal items, equipment, goods, crops, or livestock.
Second Degree of Consanguinity or Affinity is defined in Exhibit A,
which is attached hereto and incorporated herein for all purposes.
J. Source of Income means any business entity, employment,
investment, or activity which earned or produced income, including
salary, fees, interest, dividends, royalties, or rents, which has been
paid to or for the credit of a City Official, or Family Member or
which would be taxable to said City Official, or family member
under the United States Internal Revenue Code, as amended, even
though not actually paid or credited.
K. Substantial Economic Interest may take several forms. It may be
established by a legal or equitable interest in Property, which
includes but is not limited to the interest of a stockholder, co-owner,
or beneficiary. Substantial Economic Interest may also be
established by a fiduciary obligation to Property, which includes, but
is not limited to, the interest of a trustee or executor. Substantial
Economic Interest may also be established by a contractual right in
Property.
The term "Substantial Economic Interest" means a legal or
equitable interest, fiduciary obligation, or contractual right in
Property that is more than minimal or insignificant and would be
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recognized by reasonable persons to have weight in deciding a
case or an issue.
Service by a City Official as an officer, director, advisor, or
otherwise active participant in an educational, religious, charitable,
fraternal, or civic organization does not create a Substantial
Economic Interest in the Property of that organization. Ownership
of an interest in a mutual or common investment fund that holds
securities or other assets is not a Substantial Economic Interest in
the securities or other assets unless the City Official participates in
the management of the fund. A City Official does not have a
Substantial Economic Interest in a matter if the economic impact on
the City Official is indistinguishable from the impact on the public or
on the particular group affected by the matter.
L. Substantial Financial Interest means:
M An interest in a Business Entity if:
(a) a City Official and/or a Family Member owns:
(i) ten percent (10%) or more of voting stock or
shares of the Business Entity; or
(ii) ten percent (10%) or more or $15,000 or more of
the fair market value of the Business Entity;
AN
(b) the City Official or Family Member receives funds from
the Business Entity, customer or client that are ten percent (10%)
or more of the person's gross income for the previous year (e.g.,
receives funds from an employer, customer, or client).
or
(2) An interest in real Property, if a City Official or Family
Member has a legal or equitable interest in the Property with a fair
market value of $2,500 or more.
2x20v030s STANDARDS OF CONDUCI
.; GeneralProvisions
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1. No City Official may disclose any Confidential Information
gained through the official's position concerning Property,
operations, policies, or affairs of the City, for gain or
advantage in a Substantial Economic Interest or a
Substantial Financial Interest of the City Official or the
persons identified in Section 2.20.030.C.2.b. of the Conflicts
of Interest section of this Chapter.
2. No City Official may use the official's position or City -owned
facilities, equipment, supplies, or resources of the City for
gain in a Substantial Economic Interest or a Substantial
Financial Interest of the City Official, for a political campaign
of the Official, or for any of the persons identified in Section
2.20.030 C.2.b. of the Conflicts of Interest section of this
Chapter.
3. Except as specifically authorized by City ordinance, no City
Official may appear before the body of which the official is a
member to represent the City Official or any person identified
in Section 2.20.030.C.2.b. of the Conflicts of Interest section
of this Chapter. The City Official may designate and be
represented by a person of the official's choice in any such
matter.
4. No City Official may act as surety for any person or Business
Entity that has a contract with the City, or as a surety on any
bond required by the City for a City Official.
5, These General Provisions do not prohibit a City Official from
representing the City Official's interest in the City Official's
owner -occupied homestead before any City body, except the
body of which the official is a member.
B. Gifts
No City Official may solicit or accept any Gift that is offered or
given with the intention of influencing the judgment or discretion of
such official; or given in consideration of the favorable exercise of
the official's judgment or discretion in the past.
C. Conflict of Interest
1. Substantial Financial Interest
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No City Official may vote on or participate in any decision-
making process on a matter if the official has a Substantial
Financial Interest in the outcome of the matter under
consideration.
2. Substantial Economic Interest
a. No City Official may vote on or participate in any
decision-making process on a matter if the official has
a Substantial Economic Interest in the outcome of the
matter under consideration.
b. To avoid the appearance and risk of impropriety, a
City Official may not take any official action that the
official knows is likely to affect the Substantial
Economic Interests of:
i. the City Official's parent, child, step -child,
spouse, or other Family Member within the
second degree of consanguinity or affinity of
the City Official (See Attachment "A");
ii. a Business Entity for which the City Official
serves as an officer or director or serves in any
policy-making position;
a person or Business Entity from whom, within
the past twelve months, the City Official or the
official's spouse, directly or indirectly, has
solicited, received and not rejected, or
accepted an offer of employment; or
iv. a person or Business Entity from whom, within
the past twelve months, the City Official or the
official's spouse, directly or indirectly, is
engaged in negotiations pertaining to business
opportunities.
1. A City Official who has a Substantial Economic Interest in
the outcome of the matter under consideration shall disclose
that the official has a Substantial Economic Interest and shall
recuse himself/herself from discussion of and voting on the
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matter, The City Official shall also promptly file an affidavit
with the City Secretary disclosing the nature and extent of
the conflict, and the affidavit shall be included in the official
minutes of the body.
2, A City Official having a Substantial Financial Interest in the
outcome of a matter under consideration shall disclose that
the official has a Substantial Financial Interest and recuse
himself/herself immediately from voting and from the
discussion of the matter. The City Official shall also promptly
file an affidavit with the City Secretary disclosing the nature
and extent of the conflict, and the affidavit shall be included
in the official minutes of the body.
0 W ETHICS COMMISSIO
Creation of l
1. This ordinance creates an Ethics Commission that consists
of eight (8) members, all of whom must reside within the
corporate limits of the City. Each member of the City
Council may nominate a citizen from his or her district to
serve on the Commission, and the Mayor may nominate one
citizen from the City at large. Nominations must be
confirmed by a vote of the City Council,
2. A vote to reject a nominee requires a super -majority.
Members of the Commission may not hold or be a candidate
for any City elected or appointed office at the time of their
service on the Commission.
B. Terms of Service
1. Except as provided below, members of the Commission
shall serve two-year terms. No member may serve more
than two consecutive terms,
2. The terms of the initial Commission members shall begin on
the day that is one day after the date that the City Council
approves the appointment of the first eight (8) commission
members. The terms of the initial eight Commission
members shall be staggered by members drawing lots at the
first Commission meeting such that four (4) members serve
until March 1 of the calendar year that is one year following
the calendar year that the Commission members were
initially appointed, and four (4) members shall serve until
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March 1 of the calendar year that is two years following the
calendar year that the Commission members were initially
appointed. Thereafter, all terms shall be for two (2) years.
3. The second and subsequent appointments of members to
the Commission shall be staggered and shall be for terms of
two (2) years.
C. Commission Vacancies
1. All vacancies shall be filled for unexpired terms.
2. Members hold office until their successors have been
appointed and continue to hold office after a successor has
been appointed for the limited purpose of disposing of all
complaints unresolved during that member's term.
3. No member may participate in a decision regarding a
complaint for which hearings have commenced prior to his or
her appointment.
D. Removal of Commission Members
In addition to the City Council's powers of removal, members of the
Commission may be removed by a majority vote of the City Council
for cause.
E. Officers
1. The Commission shall elect a Chairperson, Vice -
chairperson, and Secretary at its annual meeting.
2. The Vice -chairperson shall conduct meetings in the absence
of the Chairperson or in the event of a vacancy in that
position.
3. The officers serve one-year terms.
F. Quorum
Five (5) or more members of the Commission constitute a quorum,
but no action of the Commission shall be of any force or effect
unless it is adopted by the favorable vote of five (5) or more
members.
G. Meetings
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1. The Commission shall meet when necessary to carry out its
responsibilities, but in any event the Commission shall hold
an annual meeting during March to elect officers and review
this Chapter.
2. The Chairperson or three members may call a meeting
provided that reasonable notice is given to each member.
Notice of all Commission meetings shall be posted pursuant
to the Texas Open Meetings Act.
2.20.050. ROLE OF THE ETHICSCOMMISSION
A. The Ethics Commission has jurisdiction over ethics complaints
involving City Officials,
S. The Ethics Commission shall have the authority to review and
investigate complaints filed in accordance with this Chapter and
issue a written finding of the Commission's determination when
appropriate.
C. Service on the Ethics Commission does not preclude a member
from filing a complaint with the Commission. The Commission
member filing the complaint must recuse himself/herself from the
Commission procedure.
D. The Ethics Commission makes recommendations to the City
Council regarding revisions and changes to this Chapter.
E. The Ethics Commission may seek any necessary assistance from
the City Council and City Manager regarding financial support
needed to carry out the Commission's duties.
F. If warranted, independent legal counsel, a C.P.A., or other
professional advisors may be utilized to advise and assist the
Commission and take part in hearings.
2.20.060. ROLE OF THE CITYTT
A. The City Attorney serves as legal counsel to the Ethics
Commission. When complaints are filed relating to the Mayor, City
Council members, City Manager, City Attorney, or other City Official
on a matter in which the City Attorney has served as Ethics
Advisor, independent legal counsel may be utilized to advise the
Commission and take part in its proceedings.
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S, The City Attorney serves as Ethics Advisor to City Officials. As
Ethics Advisor, the City Attorney is available to respond
confidentially to inquiries relating to the Ethics Ordinance (this
Chapter) and may render advisory opinions on potential conflicts of
interest or violation of this section at the request of a City Official.
The advisory opinion in any subsequent charges concerning the
matter may be used as a defense to an alleged violation of this
section unless material facts were omitted or misstated by the
person requesting the opinion.
C. If a complainant alleges a violation by the City Attorney, the
complaint must be filed with the City Secretary, with a copy to the
Mayor and the City Manager.
2.20.070. COMPLAINT
A. Filing
1. Any person who believes that there has been a violation of
this Chapter may file a sworn complaint. A complaint
alleging a violation of this Chapter must meet the
requirements of Section 2.20.070.A.2 and must be filed with
the City Secretary.
2, Required Contents of a Complaint. An ethics complaint must
be in writing and under oath and must set forth in simple,
concise, and direct statements the following:
a. the name of the complainant;
b. the street or mailing address and the telephone
number of the complainant;
C. the name of the person who allegedly committed the
violation;
d, the position or title of the person who allegedly
committed the violation;
e. the nature of the alleged violation, including, if
possible, the specific rule or provision of this Chapter
alleged to have been violated;
f. a statement of the facts constituting the alleged
violation and the dates on which or period of time in
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which the alleged violation occurred; and must
contain the following:
i. documents or other material available to the
complainant relevant to the allegation;
ii. a list of all documents or other material
relevant to the allegation and available to the
complainant, but that are not in the possession
of the complainant, including the location of the
documents; if known; and
a list of all documents or other material
relevant to the allegation, but unavailable to the
complainant, including the location of the
documents, if known.
g. If the complaint is based on information and belief, the
complaint shall state the source and basis of the
information and belief.
3. The complaint must be accompanied by an affidavit stating
that the information contained in the complaint is either true
and correct or that the complainant has good reason to
believe and does believe that the facts alleged constitute a
violation of this Chapter.
4. Upon request, the City Secretary shall provide information to
persons about the requirements of a complaint and the
process for filing a complaint.
S. Confidentiality and Ex Parte Communications
1. No City Official may reveal information relating to the filing or
processing of a complaint except as required for the
performance of official duties.
2. All documents relating to a pending complaint are
confidential, unless they are required to be disclosed under
the Texas Public Information Act (Tex. Gov. Code Ch. 552),
3. After a complaint has been filed, and during the
consideration of a complaint by the Commission, a member
of the Commission may not communicate directly or
indirectly with any party or person about any issue of fact or
law regarding the complaint, except at a meeting of the
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Commission. This provision does not prevent a member of
the Commission to consult with the City Attorney regarding
procedure and legal issues.
C. Notification
1. A copy of a complaint which meets the requirements of this
section shall be promptly forwarded by the City Secretary to
the City Attorney, the Ethics Commission, and to the person
charged in the complaint.
2. The person alleged in the complaint to have violated this
Chapter shall be provided with a copy of the Ethics
Ordinance (this Chapter) and informed that:
a. within fourteen (14) days of receipt of the complaint, a
sworn response must be filed with the City Secretary;
b. failure to file a response does not preclude the City
Attorney from processing the complaint;
C' a copy of any response to a complaint must be
provided by the City Secretary to the complainant,
who may within seven (7) days respond by sworn
writing filed with the City Secretary, who shall provide
a copy of the sworn writing to the person charged in
the Complaint. Copies of all responses shall also be
provided by the City Secretary to the Ethics
Commission,
3, City Officials have a duty to cooperate with the City
Secretary, the City Attorney, and the Ethics Commission in
any proceeding under this Chapter.
0 M:r HEARING PROCESS
Preliminary r •
1. As soon as reasonably possible, but in no event later than
sixty (60) days after receiving a complaint, the Commission
shall conduct a Preliminary Hearing. The purpose of the
Preliminary Hearing is to determine whether there are
reasonable grounds to believe that a violation of this Chapter
has occurred.
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2. The complainant and the City Official named in the complaint
have the right of representation by counsel.
3. Statements at a Preliminary Hearing shall be under oath, but
there shall be no cross examination or requests for persons
or evidence issued for the hearing.
4. The person filing a complaint shall state the alleged violation
and describe in narrative form the testimony and other
evidence which are presented to prove the alleged violation
as stated in the written complaint.
5. The City Official named in the complaint shall have the
opportunity to respond but is not required to attend or make
any statement. The official may describe in narrative form
the testimony and other evidence presented to disprove the
alleged violation. If the official agrees that a violation has
occurred, the Commission may consider the appropriate
sanction.
6. Only members of the Commission may question the
complainant, the independent counsel for the Commission,
or the City Official named in the complaint.
T At the conclusion of the Preliminary Hearing one of the
following actions shall be taken:
a. If the Commission does not determine that there are
reasonable grounds to believe that a violation of this
Chapter has occurred, the complaint shall be
dismissed.
b. If the Commission determines that there are
reasonable grounds to believe that a violation of this
Chapter has occurred, it shall schedule a final
hearing.
C. If the City Official has agreed that a violation has
occurred, the Commission may proceed to determine
the appropriate sanction.
1. A final hearing shall be held as expeditiously as possible
following the determination by the Commission that there are
reasonable grounds to believe that a violation of this section
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has occurred, but in no event shall it be held more than thirty
(30) days after said determination, The Commission may
grant two (2) postponements, not to exceed fifteen (15) days
each, upon the request of the City Official named in the
complaint.
2, If a complaint proceeds to a final hearing, the Commission
may request witnesses to attend and testify, administer
oaths and affirmations, take evidence and request the
production of books, papers, records, or other evidence
needed for the performance of the Commission's duties or
exercise of its powers, including its powers of investigation.
3. The issue at a final hearing is whether a violation of this
Chapter has occurred. The Commission shall make its
determination based on the evidence in the record. All
witnesses shall make their statements under oath. If the
Commission determines that a violation has occurred, it shall
state its findings in writing, identify the particular provision(s)
of this Chapter which have been violated, and within five (5)
working days deliver a copy of the findings to the
complainant, the person named in the complaint, and the
City Secretary. The City Secretary shall deliver a copy of the
findings to the City Council.
A. If the Commission determines that a violation of this Chapter has
occurred, it shall consider appropriate sanctions. The Commission may
receive additional testimony or statements before considering sanctions,
but is not required to do so.
B. If the Commission determines that a violation has occurred, it may
impose the following sanctions.
1. A letter of notification is an appropriate sanction when the
violation is clearly unintentional. The letter of notification
shall advise the official of any steps to be taken to avoid
future violations,
2. A letter of admonition is the appropriate sanction when the
Commission finds the violation is minor.
3. A letter of reprimand is the appropriate sanction when the
Commission finds a serious violation has been committed,
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4. A letter of censure is the appropriate sanction when the
Commission finds that a serious violation has occurred or
more than one serious violation or repeated serious
violations of this Chapter have been committed.
B. Copies of all sanction letters issued by the Commission under this
section shall be sent to the City Council,
C. In addition, when the seriousness of the violation warrants, the
Commission may recommend to the City Council the suspension or
removal from office of any official serving in a Council -appointed
position.
D. Except with regard to violations of Chapter 171 of the Texas Local
Government Code, a violation by any City Official as designated herein
of one or more of the provisions of this Chapter shall not be deemed to
be a Class C misdemeanor under the laws of the State of Texas.
A. The City Secretary shall make available to each new City Official
designated in this chapter, a copy of the text of this Chapter 2.20;
Chapter 171 of the Texas Local Government Code pertaining to
conflicts of interest; the Texas Open Meetings Act (Tex. Gov. Code
ch. 551); and the Texas Public Information Act (Tex. Gov. Code ch.
552) (collectively referred to in this section as the "Ethics Statutes").
B. The City Attorney shall conduct one or more annual seminars
devoted to educating City Officials on the meaning and legal
significance of the Ethics Statutes,
C. Each City Official shall file with the City Secretary a signed affidavit
in which the City Official acknowledges the existence of the Ethics
Statutes,
SECTION 3: All ordinances, parts of ordinances, or resolutions in conflict herewith are
expressly repealed.
SECTION 4: The invalidity of any section or provision of this ordinance shall not
invalidate other sections or provisions thereof.
SECTION 5: The Mayor is hereby authorized to sign this ordinance and the City
Secretary to attest. This ordinance shall become effective and be in full force and effect
in accordance with the provisions of the Charter of the City of Georgetown.
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READ and APPROVED on first reading this the
2009.
day of.
READ, APPROVED and ADOPTED on second reading this the
t t II q2009.
ATTEST:
Attorney
Ordinance No. C
Ethics Ordinance Revisions 2009
Page 18of18
O'eorge G. Garver, Mayor
City of Georgetown, Texas
I
2nd
Cousin