Loading...
HomeMy WebLinkAbout2003 12 02.minutes.Board of Ethics MINUTES LANSING CITY BOARD OF ETHICS REGULAR MEETING DECEMBER 2, 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: Robert Nole, Chairperson Jason Amen Hetep Mary Claiborne Ronald Frybort Rev. John Folkers ABSENT: LaSandra Jones Ellen Sullivan, Ph.D. A QUORUM WAS PRESENT Yes OTHERS PRESENT: Jack Roberts, Deputy Attorney Debbie Miner, City Clerk M. Denise Griffin, Deputy City Clerk John Pollard Brian Jeffries, Lansing Councilmember At-Large Brian Davis, LFD Fire Inspector Daniel Flynn, Project Engineer at the Board of Water & Light PUBLIC COMMENT: See Item #7 under Communications Received and Sent APPROVAL OF AGENDA: Motion by Member Amen Hetep to approve the Agenda as submitted MOTION CARRIED 5/0 SECRETARY’S REPORT: Approval of Minutes: Motion by Member Frybort to approve the Minutes of October 14, 2003 as submitted MOTION CARRIED 5/0 Motion by Member Claiborne to move items #1 and #6 up to the next order of Business MOTION CARRIED 5/0 MINUTES: BOARD OF ETHICS MEETING DECEMBER 2, 2003, pg. 2 2 OLD BUSINESS: 1. Affidavit of Disclosure filed by Brian J. Davis, Fire Inspector in the Lansing Fire Department Chairman Nole asked Mr. Davis why he checked the last box under item #2 on the affidavit of disclosure, indicating that he thought there might be the appearance of a conflict of interest. Mr. Davis responded that during normal work hours he is charged with identifying violations of the City’s fire code. He is now a partner in a business that will be conducting fire safety surveys and inspections, and hazard material recognition and training to area businesses to allow them to avoid situations that may expose them to citations for violation of the fire code. Member Folkers asked Mr. Davis if the people who would be hiring him for these services are aware that he is a City of Lansing Fire Fighter. Mr. Davis responded in the affirmative. Attorney Roberts reminded Boardmembers of a 1990 Ethics Board Opinion that involved the issue of whether someone who worked for building safety could do private work with the City of Lansing that might be inspected by City of Lansing employees. In this case the Board concluded that the conduct does not rise to the level of a conflict of interest as long as the work was not done within the jurisdictional boundaries of the City of Lansing. Member Frybort asked Mr. Davis if he discerned a potential for conflict of interest involved with the inspection of his clients within City boundaries. Mr. Davis answered yes. Member Frybort asked Mr. Davis if the inspections he performs will be done at the request of the client, and if so, how are they made aware that he offers this service. Mr. Davis said the inspections are done at the request of clients who have been given a packet of information about the services offered by his firm. Member Frybort asked Mr. Davis if he is the only partner in the firm that conducts these types of inspections. Mr. Davis said that he is the only partner performing this service that works for the City. Member Frybort asked if there is a possibility for an inspection he performed to be assigned to someone else who works for the City. Mr. Davis responded that he is responsible for site review for the Fire Marshal. He looks at their prints and compares them with the code. The Fire Marshal could assign to him an inspection of one of the clients he has provided a service to. He is conducting pre-inspection; inspecting property and alerting owners to potential violations that could be found in the City’s formal inspection. Member Frybort asked Mr. Davis how the schedule for his business would impact his scheduled duties with the Fire Marshal. Mr. Davis said the two schedules would not impact each other at all. He would be working for his business on his own time. He works a 4 day week for the City of Lansing. Member Folkers asked Mr. Davis; when he goes as a fireman for the City of Lansing does he identify firms that could be targeted by his personal business. Mr. Davis said MINUTES: BOARD OF ETHICS MEETING DECEMBER 2, 2003, pg. 3 3 that he knows people in these businesses, but he does not recommend them to his business directly. Member Folkers asked Mr. Davis if he referred a particular business to his firm, and they got the job, does he get a cut of the profits from the services provided by his business. Mr. Davis responded no. Attorney Roberts asked Mr. Davis how he would handle situations in which he had been engaged in inspection of businesses through his personal business and then was told by the Fire Marshal that he was required to perform an inspection on behalf of the City of Lansing at that business. Mr. Davis said that he would feel funny about it, but that it could happen. That is why he filed the affidavit of disclosure. Attorney Roberts asked Mr. Davis how he anticipates that he and his partners will divide the profits from their inspections. Mr. Davis said he will look at the buildings and what they are used for. Attorney Roberts asked what about someone else in his firm doing the inspection, how are the profits handled per month? Are they evenly divided between the partners? Mr. Davis responded that they are paid to the partners per the fee established for the inspection they perform. Attorney Roberts asked Mr. Davis if he would have difficulty inspecting a business on behalf of the City that one of his partners had performed an outside inspection on. Mr. Davis answered that at this time he is the only person in the business that is qualified to do fire inspections. Member Frybort asked Mr. Davis if a business is required to be inspected by the City, why would they go to a private firm and pay to have it done? Mr. Davis responded that fire inspections are a federal requirement. Insurance companies require them and their requirements are often more stringent than the City’s fire code. Grants are given for them too. Member Frybort asked Mr. Davis if it is possible that the person who does the final inspection could be marketed by his firm as the person to call to conduct a preliminary inspection. Member Folkers asked if the reverse scenario were possible? Mr. Davis responded by saying, that is why he filed the affidavit. Member Amen Hetep asked Mr. Davis what his primary interest is in having clients in the City of Lansing. Mr. Davis said it is not his desire to have clients in the City of Lansing. His firm is looking for potential clients and the City has a number of commercial businesses that could benefit from their services. They are currently negotiating agreements in Boyne Mountain, Michigan and elsewhere. Member Amen Hetep asked if their motivation to seek clients in Lansing is a financial consideration. Mr. Davis replied that in one respect it is. That is his question to the Board. Another questions that he has is, can he provide this service for his firm for free? Member Frybort asked Mr. Davis if he is under the impression that not working in the Lansing area would eliminate the necessity of filing this affidavit. Mr. Davis responded negatively. His firm could hire someone from outside of the City, but he could still be required to do follow-up on behalf of the City. Member Frybort explained that the Board has to look at whether he could be expected to perform unbiased inspections of MINUTES: BOARD OF ETHICS MEETING DECEMBER 2, 2003, pg. 4 4 his own preliminary inspection work. Member Folkers asked Mr. Davis if it is possible, or likely that a client of his may want just his partners services, but not his? Mr. Davis responded in the affirmative, saying that it depends on how much money they have to spend and how they prioritize their ability to purchase services. Chairman Nole clarified; the Fire Marshal has the authority to provide a list of required changes to the company, or to close it down, while his private firm does not, correct? Mr. Davis responded in the affirmative. Member Folkers asked Mr. Davis what he would tell a business when performing an inspection for his own firm. Mr. Davis said he would warn them of a dangerous situation that was found, while if he were inspecting on behalf of the Fire Marshal he would have to close the building down and order it’s evacuation. Member Frybort asked Mr. Davis if there is a situation where he could do an inspection which would be followed up by a co-worker’s inspection that uncovered violations that were not found in the preliminary inspection. Member Frybort then asked Attorney Roberts if there is a liability issue involved with the scenario he described. Attorney Roberts said that he thinks there may be issues along those lines, but that may be an employment issue. There could be a liability issue if Mr. Davis makes an inspection as an individual and then there is a fire that someone could say that because, of his official relationship with the City of Lansing there is some liability on the part of the City, regardless of what the facts are. Mr. Davis said that the fire code adopted by the City has a clause that releases the City from such liability. Attorney Roberts responded that in governmental immunity with the City, it is dismissed if there is a proprietary function. There could be a situation where he has accepted pay for an inspection and then a fire happened. That business could say that he works for the City, which information was contained in his company’s literature, and therefore there is no governmental immunity. The opinion he has distributed to Boardmembers tonight was adopted by the Ethics Board in 1990, but the parallels are direct and without distinction between these two situations. Mr. Davis will be doing work privately that he is required to do by the City fire code. The only distinction is that he would be called by happenstance to do that work. Member Amen Hetep expressed his feeling that the potential for liability clearly exists. Attorney Roberts answered that this is not necessarily something that the Ethics board looks at, but the liability circumstance is something that adds weight to the fact that this creates a conflict of interest. Member Frybort asked Mr. Davis if he is currently inspecting buildings that he previously MINUTES: BOARD OF ETHICS MEETING DECEMBER 2, 2003, pg. 5 5 inspected for his personal business? Member Folkers asked Mr. Davis if he could dismiss himself from inspections in the City of Lansing? Attorney Roberts cited the ethics ordinance, section 290.04(k) “...no officer or employee shall participate in, vote upon or act upon, contracts, the making of loans or grants of public funds, the granting of subsidies, fixing of rates, issuance of permits or certificates, or other regulation or supervision relating to any business in which the officer or employee, or a member of his or her immediate family, or any business with which either is associated has a financial or personal interest, other than an interest as a citizen, officer or employee of the city.” This provision requires that Mr. Davis is foreclosed in his official capacity from acting upon something he does in his job. He would be foreclosed from taking official action upon inspections he had made. Member Amen Hetep said that the association is there, whether Mr. Davis conducts the inspection or not. Attorney Roberts agreed that even if Mr. Davis does not conduct the inspection, it could still create a conflict for him. Attorney Roberts asked Mr. Davis if in the literature his company put together there would be included information about his ability to conduct inspections that he is qualified to conduct based on his employment with the City of Lansing? Mr. Davis said that this is what his firm has put in their literature, his ability to conduct inspections based upon his training and certification. Attorney Roberts inquired about information in the literature pertaining to inspections Mr. Davis has done for the City, including General Motors, Jackson National Life Insurance, the State of Michigan Legislative Building, and about the information contained about his certification received from the City of Lansing. 6. Letter to Daniel J. Flynn, Principal Consultant in the Project Engineering Department of the Board of Water & Light requesting that he attend the December 2, 2003 Ethics Board Meeting to provide clarification regarding the affidavit of disclosure he filed Mr. Flynn said that he may be responsible for, as a project manager, an association with the Superior Electric firm that his son works for, whether his son works on that project or not. Attorney Roberts asked Mr. Flynn to describe his functions as a project manager as it relates to the things that includes and why that may or may not include the type of work his son would do with Superior Electric. Mr. Flynn stated that he is not an electrical engineer, but as a project manager he sets project budgets and supervises other agencies on the project team to bid work within the Board of Water & Light purchasing policy guidelines. His son could work for a firm that is assigned by the Union Hall in which he is a worker. They are doing work right now with Superior and he filed this affidavit of disclosure to comply with the City’s ethics ordinance. He is responsible to see to the overall goings on in the project. Project MINUTES: BOARD OF ETHICS MEETING DECEMBER 2, 2003, pg. 6 6 teams oversee these projects. They work with contractors and sub-contractors. Though the contract is given to one contractor, they might get an outside electrical contractor, or one of the Board’s own electricians. There is a potential to see an electrical contractor from one of the other firms on a Board of Water & Light project. The team comes up with a bidders list and his son could be working for one of the bidders at any particular time. Because of that he makes sure that he is dismissed from this duty. There is a bid going on right now that will go through the approval process in January. Member Frybort asked Mr. Flynn if someone in his position would be able to steer business to a company that would enable one’s own relative to be hired back if they were laid off? Mr. Flynn said that is a difficult question to answer. He does not know. Attorney Roberts asked Mr. Flynn if he has direct responsibility for determining whether a qualified bidder is the bidder that is chosen, and why or why not his position would allow him to give business to his sons company? Mr. Flynn said that he does not think he could do that. The discipline engineer makes recommendations for selection of contractors, but only within his discipline. He is not an electrical engineer. As a project manager he is responsible to see that the project is done on time and within budget. He relies on managers to see that this is done. Attorney Roberts reiterated; Mr. Flynn is not responsible, under the bidding process, for choosing of a particular company that his son works for. Also, because of the discipline, he would not be someone who would directly review the type of work his son does. Mr. Flynn agreed. Attorney Roberts asked Mr. Flynn if his son becomes a mechanical engineer then the situation would be different, correct? Mr. Flynn agreed. Member Amen Hetep pointed out to Mr. Flynn that on his affidavit of disclosure he answered that he may have a financial interest in a matter to be acted upon by the City of Lansing. What is that matter? Mr. Flynn responded that it is because his son could be employed by a firm that does business with the Board of Water & Light. Member Frybort asked Mr. Flynn if his son would have a role in submitting bids to the City for approval. Mr. Flynn responded in the negative, saying that his son is a laborer. His intent in filing the affidavit is just to reveal that his son does work for a company that he could be involved in doing business with. Their particular process has a system of checks and balances built into it. Member Folker asked Mr. Flynn who approves the award of contract. Mr. Flynn answered the purchasing authority approves award of the contract. A list of bidders is made up by electrical engineers. The purchasing department evaluates the proposals and awards the contract. Communications sent and received since the last meeting: 1. Affidavit of Disclosure filed by Brian J. Davis, Fire Inspector in the Lansing Fire MINUTES: BOARD OF ETHICS MEETING DECEMBER 2, 2003, pg. 7 7 Department INTERVIEW OF CONDUCTED UNDER OLD BUSINESS 2. Affidavit of Disclosure filed by John H. Klein, Construction Rehabilitation Specialist in the City of Lansing Planning and Neighborhood Development Department THE CITY CLERK WAS REQUESTED TO INVITE MR. KLEIN TO ATTEND THE JANUARY MEETING FOR CLARIFICATION 3. Letter to John A. Baker, Battalion Chief in the LFD informing him of the disposition of the affidavit of disclosure he filed RECEIVED AND PLACED ON FILE 4. Letter to Lawrence H. Wilhite General Counsel of the Board of Water & Light submitting Ethics Board Opinion #031 RECEIVED AND PLACED ON FILE 5. Letter to 4th Ward Councilmember Geneva Smith notifying her of the resignation of Calvin C. Anderson, PhD. from the Board of Ethics RECEIVED AND PLACED ON FILE 6. Letter to Daniel J. Flynn, Principal Consultant in the Project Engineering Department of the Board of Water & Light requesting that he attend the December 2, 2003 Ethics Board Meeting to provide clarification regarding the affidavit of disclosure he filed INTERVIEW CONDUCTED UNDER OLD BUSINESS 7. Letters regarding Complaint #2003-1 to the subject of the complaint, the complainant and the City Attorney PUBLIC COMMENT: John Pollard expressed his opinion that the Councilmember named in Complaint #2003-1 should, at the very least, have filed an affidavit of the appearance MINUTES: BOARD OF ETHICS MEETING DECEMBER 2, 2003, pg. 8 8 of a conflict of interest prior to voting on the resolution approving ACT-09-02. He believes this Councilmember had a lack of impartiality in this matter because of a former membership on the LCC Board of Trustees. The Ethics Manual lists a 1 year period of abstention from voting on matters that pertain to “...any person or organization for whom you have, within the last year, served as an officer, director, trustee, general partner, agent, attorney, consultant, contractor or employee” in the Frequently Asked Questions About Impartiality in Performing Public Duties section of page 7. He is not a lawyer, but as a layperson reading the City Charter and Ethics Manual he feels that either a disclosure, or abstention from voting was required. Boardmember discussion was held on the merits of Mr. Pollard’s complaint. City Attorney Roberts submitted a preliminary written analysis stating no finding of a conflict of interest. He told Boardmembers that City Attorney Smiertka had announced the lack of a conflict at the Committee of the Whole meeting that preceded the City Council meeting in which the subject resolution was adopted. Further, the City Charter and Ethics Ordinance compel the Councilmember to vote on the resolution absent a conflict of interest. Motion by Member Amen Hetep to accept the City Attorney’s preliminary written analysis and adopt it as Ethics Board Opinion #32 MOTION CARRIED 5/0 CITY ATTORNEY ROBERTS PRELIMINARY WRITTEN ANALYSIS WILL BE AVAILABLE FOR SIGNATURE OF BOARDMEMBERS AT THE JANUARY 2004 MEETING MEMBER FOLKERS LEFT THIS MEETING OF THE BOARD OF ETHICS AT 7:30 P.M. BECAUSE OF A SCHEDULING CONFLICT 8. Revised Membership Roster RECEIVED AND PLACED ON FILE CITY ATTORNEY’S REPORT: Mr. Roberts report was given in association with the discussion of Complain #2003-1 above. No additional reports were given. CHAIR’S REPORT: The Chair did not report. NEW BUSINESS: MINUTES: BOARD OF ETHICS MEETING DECEMBER 2, 2003, pg. 9 9 1. Election of Vice President Motion by Member Frybort to nominate Ellen Sullivan as the Vice Chairperson for the remainder of the Ethics Board calendar year due to her dedication and length of service on the Board MOTION CARRIED 4/0 2. Selection of a Gift Commemorating the Service of Calvin C. Anderson, PhD. on the Board of Ethics (to be presented at the City Council Meeting of 12/15/03) THE CITY CLERK WAS REQUESTED TO ORDER A COMMEMORATIVE PLAQUE HONORING DR. ANDERSON IN APPRECIATION OF HIS YEARS OF PROFESSIONALISM AND MIRTH ADJOURNED 8:20 P.M. Respectfully submitted, Debbie Miner, Recording Secretary