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HomeMy WebLinkAbout2003 09 09.minutes.Board of Ethics 1 MINUTES LANSING CITY BOARD OF ETHICS REGULAR MEETING SEPTEMBER 9, 2003 - 5:30 P.M. TENTH FLOOR COUNCIL CONFERENCE ROOM, LANSING CITY HALL The meeting was called to order at 5:30 P.M. in the Tenth Floor Council Conference Room, City Hall, Lansing, Michigan. BOARD MEMBERS PRESENT: Dr. Cal Anderson, Chairperson Bob Nole, Vice-Chairperson Ronald Frybort Rev. John Folkers LaSandra Jones Ellen Sullivan, Ph.D. ABSENT: Jason Amen Hetep, excused Mary Claiborne, excused A QUORUM WAS PRESENT Yes OTHERS PRESENT: Debbie Miner, City Clerk M. Denise Griffin, Deputy City Clerk Jack Roberts, Deputy Attorney PUBLIC COMMENT: There was no public comment. APPROVAL OF AGENDA: Motion by Vice Chairman Nole to amend the agenda by adding the Affidavit of Disclosure filed by the City Attorney on behalf of the City Attorney, Personnel Director and Finance Director, and to approve the Agenda as amended. MOTION CARRIED 6/O SECRETARY’S REPORT: Motion by Vice Chairman Nole to approve the minutes of August 12, 2003 as submitted. MOTION CARRIED 6/0 2 Motion by Member Sullivan to approve the minutes of June 10, 2003 as submitted. MOTION CARRIED 6/0 • Communications and Petitions sent and received since the last meeting: 1. Letter from Lawrence Wilhite, General Counsel to the Board of Water & Light submitting a request for opinion related to discounts offered to BW&L Employees by local businesses HANDLED UNDER REPORTS FROM THE CITY ATTORNEY 2. Affidavit of Disclosure filed by Joel C. McDowell, Fleet Planner at the BW&L regarding his brothers employment at Deere & Company HANDLED UNDER NEW BUSINESS 3. Affidavit of Disclosure filed by Joel C. McDowell, Fleet Planner at the BW&L regarding his cousins employment at Jerry’s Tire of Lake Odessa HANDLED UNDER NEW BUSINESS 4. Affidavit of Disclosure filed by Kathy Younglove, Manager in the Material & Services Department of the Board of Water & Light regarding her life partner’s employment at Shaheen Chevrolet HANDLED UNDER NEW BUSINESS 5. Memo from Jack Roberts, Jr. Chief Deputy City Attorney submitting Michigan Statute regarding Conflicts of Interest RECEIVED AND PLACED ON FILE WITH NO FURTHER ACTION REQUIRED CITY ATTORNEY’S REPORT: City Attorney Roberts submitted a draft opinion in response to the request for opinion from Mr. Lawrence Wilhite, General Counsel to the Board of Water & Light. Mr. Wilhite has requested that the Ethics Board take a position on an administrative policy adopted by the BWL, and even though the BWL appears to have written a policy to follow the Ethics Ordinance, it does not exactly do so. It is his evaluation (Roberts) that the policy presented by the BWL is more restrictive than the prohibitions about receiving things of value that are contained in the Ethics Ordinance. The BWL has established a zero tolerance policy that is more restrictive than the Ethics Ordinance. The second part of this policy deals with BWL Employees who do not have purchasing power. The Ethics MINUTES: BOARD OF ETHICS MEETING OF SEPTEMBER 9, 2003 3 Ordinance is not a zero tolerance policy, it is limited to non-monetary gifts with a value of $50 per employee per year. The BWL letter describes something that, in his opinion, is not a gift, nor is it given in exchange for or in expectation of receiving something in return from a BWL Employee. These described gifts are of such a nominal nature that they appear to be more an incentive or pricing advantage used as a promotional technique by business to enhance their sales. They offer these price breaks to gain business at a lower profit margin, but still increasing their sales. He recommends that the BWL make the determination as to whether this is proper or improper for their employees to receive such sales incentives. Although the same words are contained in both the Ethics Ordinance and the BWL Policy the similarity is not sufficient for the Ethics Board to interpret the BWL policy. Mr. Wilhite’s letter is a request for interpretation of the BWL Policy. The draft opinion that he has distributed restates the question and then explains that such an interpretation is not in the Ethics Boards jurisdiction. The activity that the BWL is questioning is not offered, nor given, in exchange for special consideration on the part of BWL Employees. Motion By Vice Chairman Nole to revise the City Attorney’s draft opinion by adding the following statement to the beginning of the first paragraph: WHILE THE ETHICS BOARD INTERPRETS THE ETHICS ORDINANCE AND WILL ADVISE THE BWL IF ITS POLICY VIOLATES THE ETHICS ORDINANCE, IT MUST BE POINTED OUT THAT THE ETHICS BOARD CAN NOT AND WILL NOT INTERPRET THE INDEPENDENT POLICY OF THE BOARD OF WATER & LIGHT BEYOND THESE PARAMETERS MOTION CARRIED 6/0 Motion by Member Folkers to adopt the draft opinion submitted by the Deputy City Attorney as revised by Vice Chairman Nole. MOTION CARRIED 6/0 CHAIR’S REPORT: The Chair did not give a report. OLD BUSINESS: 1. Affidavit of Disclosure filed by Jeremy Adcock, Lineman at the Board of Water & Light Mr. Roberts reported that his review of Mr. Adcock’s statements from the August 8, 2003 MINUTES: BOARD OF ETHICS MEETING OF SEPTEMBER 9, 2003 4 meeting did not reveal any direct violations of ethics ordinance prohibitions. Mr. Adcock does not have any insider information, but one of the things he would like to do is contract directly with his employer the BWL. He described his mechanism for a manufacturers representative, and that he would not be directly involved with any part of the negotiations. Mr. Roberts said that he did not hear in Mr. Adcock’s statements any violation of the ethics ordinance, but after thinking about the issue he remembered the state statute that is more strict than the ethics ordinance because it contains situations that are absolute prohibitions. He wanted to give the Ethics Board an opportunity to be aware of the state statute. This was important to him because it appears that what Mr. Adcock wants to do, while not a violation of the ethics ordinance, may be a violation of state statute which the Ethics Board is not intended to enforce. Specifically the section that deals with Public Employees who want to contract directly with the public employer. It includes legislators not contracting with the state and includes the definition of a public entity as any public body in the state. This includes the BWL, a public body corporate of the City, within the state. It also prohibits public servants from contracting directly or indirectly with their employer. He is concerned that, should the Board of Ethics decide to receive the affidavit and place it on file, Mr. Adcock could be left with the impression that there is nothing in state law that he needs to look at. Mr. Roberts suggested that the Board direct Mr. Adcock’s attention to this area of the state statute that is outside of the Ethics Board jurisdiction. He has taken the liberty of drafting language that could be added to the Board’s letter to Mr. Adcock intended to inform him of this issue. Chairman Anderson requested that a copy of this response be sent to the General Counsel at the Board of Water & Light. Motion by Vice Chairman Nole to receive and place on file the Affidavit of Disclosure filed by Jeremy Adcock of the Board of Water & Light with no further action required or contemplated at this time, and to include the language provided by Mr. Roberts. Motion by Member Sullivan that the letter state in part; “based on the information you provided and the procedures you follow in the representation of your products, we have not found evidence of a violation of the City of Lansing Ethics Ordinance, however, we appreciate you submitting this information in consideration of a potential appearance of a violation. Further, we call to your attention the Michigan Statute regarding conflicts of interest found at MCL 15.321 et seq. A copy of this statute has been attached for your information. MOTION CARRIED 6/0 NEW BUSINESS: MINUTES: BOARD OF ETHICS MEETING OF SEPTEMBER 9, 2003 5 • Affidavit of Disclosure filed by Joel C. McDowell, Fleet Planner at the BW&L regarding his brothers employment at Deere & Company Mr. Roberts reported speaking with Mr. McDowell about the affidavits he filed, first with regard to the affidavit about his brother who is employed with the John Deere Company. He asked Mr. McDowell to confirm that his brother was not employed in a sales capacity at John Deere that could result in a commission paid to his brother for the purchase of equipment by the BWL. Mr. McDowell confirmed that his brother is not involved in a sales capacity at John Deere. Mr. Roberts said that he does not see a violation of the Ethics Ordinance with respect to Mr. McDowell and his brother, however Mr. McDowell is here tonight to answer any questions that the Ethics Board might have for him. Member Frybort asked Mr. McDowell if he commonly selects John Deere equipment even when they are not the lowest bidder. Mr. McDowell said that it is not common. They write specifications for their equipment purchases and include a statement of what equipment is being replaced and available equivalents. He gives the mechanical perspective of ease of service and cost of equipment. When he selects the high bid on equipment he has to submit an explanation as to why he chose the more expensive piece. The last John Deere equipment that he recommended was not the highest bid, but not the lowest bid either. • Affidavit of Disclosure filed by Joel C. McDowell, Fleet Planner at the BW&L regarding his cousins employment at Jerry’s Tire of Lake Odessa Mr. Roberts stated that his review of this affidavit did not show that there was any benefit to Mr. McDowell from this relationship. The definition of immediate family does not include cousins. This open bid contract began in 1997. The BWL continues to use this service because of the tire prices and the on-site service and repair benefit they offer to the Board. Other dealerships offer competitive prices but not the convenience of on site service and repair of the quality Jerry’s offers. This relationship is not, on its face, a violation of the Ethics Ordinance. Motion by Vice Chairman Nole that the two affidavits of disclosure filed by Joel C. McDowell be received and placed on file with no further action required or contemplated at this time. MOTION CARRIED 6/0 • Affidavit of Disclosure filed by Kathy Younglove, Manager in the Material & Services Department of the Board of Water & Light MINUTES: BOARD OF ETHICS MEETING OF SEPTEMBER 9, 2003 6 Mr. Roberts reported speaking with Ms. Younglove and confirming that her partner does not receive any commission on the sale of vehicles, nor does he receive a benefit from the sale of vehicles to the BWL. Motion by Vice Chairman Nole to receive this affidavit of disclosure and place it on file with no further action required or contemplated at this time. MOTION CARRIED 6/0 • Affidavit of Disclosure submitted by City Attorney Smiertka on behalf of himself, the City Personnel Director and the Finance Department Director Mr. Roberts explained that the three department directors involved in the filing of this affidavit have been in labor negotiations that resulted in changes to the Teamster 580 Contract and the Teamster 214 Contract and were approved by City Council. A collective bargaining contract is in existence. These offices have Teamster members in their employ who will be eligible for these benefits. The passage of an ordinance will be required to finalize some of the benefits contained in the bargaining agreement. Motion by Vice Chairman Nole to receive and place on file the Affidavit of Disclosure filed by City Attorney Smiertka on behalf of himself, the Finance Director and the Personnel Director with no further action required or contemplated at this time. MOTION CARRIED 6/0 BOARD ROUND TABLE Member Sullivan noted that she would be unable to attend the November Board Meeting which is scheduled for Veterans Day, and asked if City Hall will be open on that day. City Clerk Miner indicated that City Hall will be closed on Veterans Day. Chairman Anderson announced that he has a vested interest in the Prostate Cancer Screening Program being conducted by Ingham Regional Medical Center. He urged all male members to take advantage of this free screening and to urge their family members to take advantage of it as well. ADJOURNED 8:30 P.M. Respectfully submitted, Debbie Miner, Recording Secretary MINUTES: BOARD OF ETHICS MEETING OF SEPTEMBER 9, 2003 7