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HomeMy WebLinkAbout2003 10 14 Additional Notes 'rY OF LANSING - BOARD OF ETH i REGULAR MEETING OCTOBER 14, 2003 - 10T" FLOOR COMMITTEE ROOM, CITY HALL AGENDA CALL TO ORDER: 5:30 P.M. The Chair presiding ROLL CALL: E` Calvin Anderson, PhD, Chair Ron Frybort, Member �6 —❑ Jason Amen Hetep, Member El Rev. LaSandra Jones, Member ' C ,,,Mary Claiborne, Member Robert Nole, Vice Chair C/Rev. John Folkers Ellen Sullivan, PhD, Member A Quorum is: 0 Present ❑ Not Present ❑ Others Present: � L kj?g&-jftp&-� PUBLIC COMMENT: (TIME LIMIT OF 5 MINUTES PER SPEAKER) APPROVAL OF AGENDA: ❑ As Submitted CF'//With Changes Noted SECRETARY'S REPORT: � ❑ Approval of Minutes: Minutes of September 9, 2003 6P ❑ Communications received and sent since last meeting: Letters to Board of Water & Light Employees Joel C. McDowell, Kathy Younglove and Jeremy Adcock advising them of the disposition of their affidavits of disclosure ;.hi Affidavit of Disclosure filed by Daniel J. Flynn, Principal Consultant in the Project Engineering Department of the Board of Water & Light Letter to Battalion Chief John A. Baker requesting that he attend the 10/14/03 Board of Ethics Meeting CITY ATTORNEY'S REPORT: CHAIR'S REPORT: TABLED: OLD BUSINESS: ❑ 1. Opinion #31 , Response to Lawrence Wilhite, General Counsel of the Board of Water & Light NEW BUSINESS: BOARD ROUND TABLE ADJOURNMENT 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. Ti ABSENT: 'H 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 A PUBLIC COMMENT: j Tbere 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 6/0 SECRETARY'S 18EPORT: Motion by Vice Chairman Nole to approve the minutes of August 12, 2003 as submitted. MOTION CARRIED 6/0 Motion by Member Sullivan to approve the minutes of June 10, 2003 as submitted. 1 MINUTES;BOARD OF ETHICS MEETING OF SEPTEMBER 9,2003 MOTION CARRIED 610 • 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 2 MINUTES;BOARD OF ETHICS MEETING OF SEPTEMBER 9,2003 BWL Employees who do not have purchasing power. The Ethics 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 3 MINUTES;BOARD OF ETHICS MEETING OF SEPTEMBER 9,2003 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 strictthan 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 i part; "based on the information you provided and the procedures you follow in the reoresentation of your products, we have not found evidence of a violation of the City of Lp'nsing 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: 4 MINUTES:BOARD OF ETHICS MEETING OF SEPTEMBER 9,2003 • 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 Ordnance. I 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 Mr. Roberts reported speaking with Ms. Younglove and confirming that her partner does 5 MINUTES;BOARD OF ETHICS MEETING OF SEPTEMBER 9,2003 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 hims If,the City ,/,� Personnel Director and the Finance Department Director off 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. 00rs-io 1A MOTION CARRIED 6/0 l� 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 4ostate 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 6 City of Lansing - Board of Ethics October 7, 2003 Joel C. McDowell 1140 S. Pennsylvania Ave. Lansing MI 48910 Dear Mr. McDowell: At their regular meeting held on Tuesday, September 9, 2003,the Board of Ethics took up the two affidavits of disclosure you filed. The Ethics Board has asked me to convey their decision to you. It is as follows: "To receive and place on file the Affidavits of Disclosure filed by Joel McDowell, BWL Fleet Planner, with no further board action required orcontemplated. Furtherto expressto Mr. McDowell the Board's appreciation for his pre-emptive action in bringing this matter to their attention." Sincerely, *DebieMiner I Lansing City Clerk (517) 483-4130 City Clerk's Office, 124 W. Michigan Ave. Lansing, MI 48933-1695 City of Lansing - Board of Ethics October 7, 2003 Kathy Younglove 1110 S. Pennsylvania Ave. Lansing MI 48912 Dear Ms. Younglove: At their regular meeting held on Tuesday, September 9, 2003,the Board of Ethics took up the affidavit of disclosure you filed. The Ethics Board has asked me to convey their decision to you. It is as follows: "To receive and place on file the Affidavit of Disclosure filed by Kathy Younglove, Mgr. of Material & Serivices at the BWL with no further board action required or contemplated. Further to express to Ms. Younglove the Board's appreciation for her pre-emptive action in bringing this matter to their attention." Sincerely, Debbie Miner I I Lansing City Clerk (517) 483-4130 City Clerk's Office, 124 W. Michigan Ave. Lansing, MI 48933-1695 City of Lansing - Board of Ethics October 7, 2003 Jeremy Adcock 1355 Waldo Rd. Williamston MI 48895 Dear Mr. Adcock: Thank you for attending the August meeting of the Board of Ethics and presenting additional information about the affidavit of disclosure you filed. At their regular meeting held on September 9, 2003 the Ethics Board made the following determination: 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 Because the Ethics Board is charged with the application of the Lansing City Charter and Ethics Ordinance, the application of this statute is outside the Ethics Board's function to review. Therefore, this response to your affidavit of disclosure does not address or determine whether your contemplated sales activities with the BWL would or would not violate the statute. It is suggested that before you commence any sales with the BWL, directly or indirectly, you consult the BWL's attorney or your own attorney for an opinion regarding the applicability of the statute to your transaction. I If you have any questions with regard to this determination, please feel free to contact me at any I time. My office number is 483-4130. Sincerely, `b� Debbie Miner, Lansing City Clerk att/ cc: Lawrence Wilhite, General Counsel Board of Water & Light (51 7) 483-4130 City Clerk's Office, 124 W. Michigan Ave. Lansing, M148933-1695 Public Officers and Employees 15.321 CONFLICTS OF INTEREST AS TO CONTRACTS Act 317, 1968, p 557, eff September 1, 1968. AN ACT relating to the conduct of public servants in respect to governmental decisions and contracts with public entities; to provide penalties for the violation of this act; to repeal certain acts and parts of acts; and to validate certain contracts. (Amended by Pub Acts 1984, No. 81, imd eff April 18 1984.). The People of the State of Michigan enact: Editor's notes: Act No. 317 of 1968 became law without the governor's signature. § 15.321. Definitions. [MSA § 4.1700(51)] Sec. 1. As used in this act: ti (a) "Public servant" includes all persons serving any public entity, except members of the legislature and state officers who are within the provisions of section 10 of article 4 of the state constitution as implemented by legislative act. (b) "Public entity" means the state including all agencies thereof, any public body corporate within the state, including all agencies thereof, or any non-incorporated public body within the state of whatever nature, including all agencies thereof. History: Pub Acts 1968, No. 317, § 1, by § 10 eff September 1, 1968. Editor's notes: § 15.321 was repealed by Pub Acts 1975,No.227,eff March 31, 1976.The repealing act was declared unconstitutional by the Michigan Supreme Court in 2 advisory opinions (396 Mich 123 and 396 Mich 465). Michigan Digest references: Limitation of Actions § 10. CASE NOTES A position of public employment, in ordinate office placed under the control order to be a public office of a civil of the public office by the legislature; and nature, must be created by the constitu- the public office must have some perma- tion, the legislature, or a municipality or nency and continuity and not be tempo- other body through authority conferred rary or occasional. Hamilton v Reynolds by the legislature and must possess a (1983)129 Mich App 375,341 NW2d 152, delegation of a portion of the sovereign app den(1985)422 Mich 891,368 NW2d power of government to be exercised for 228. the benefit of the public; the powers The public servant conflicts of interest conferred and the duties to be discharged act, applies to officers and employees of must be defined directly or impliedly by public school academies created under the legislature or through legislative au- Part 6A of the Revised School Code. Op thority; the duties must be performed Atty Gen, January 26, 1998, No. 6966. independently and without control of a 1968 PA 317(Conflicts of Interest as to superior power other than the law, un- Contracts) applies to members of county less the duties are of an inferior or sub- boards of commissioners, city councils, 185 § 15.321 Public Officers and En wees township boards, and members of any with conflicts of interest arising out of other public bodies that county boards of public contracts, and 1968 PA 317 only commissioners, city councils and town- supersedes section 31 of 1851 PA 156 to ship boards may establish by law. Op the extent that section 31 could penalize 1 . Atty Gen, June 25, 1996, No. 6906. a county commissioner for a conflict of The Legislature intended that 1968 PA interest arising out of a public contract. 317(Conflicts of Interest as to Contracts) Op Atty Gen, June 25, 1996, No. 6906. constitute the sole law regarding con- A conflict of interest does not exist if an is flicts of interest arising out of public individual serves as an attorney for a contracts involving public servants. Op school district at the same time his Atty Gen, June 25, 1996, No. 6906. spouse serves as a teacher in the same 1968 PA 317(Conflicts of Interest as to school district. Op Atty Gen, October 21, Contracts)supersedes section 30 of 1851 1992, No. 6736. PA 156 to the extent that section 30 deals § 15.322. Contracts, prohibition; exception; solicitation, prohibition; exception; negotiation, prohibition. [MSA § 4.1700(52)] Sec. 2. (1) Except as provided in sections 3 and 3a, a public servant shall not be a party, directly or indirectly, to any contract between himself or herself and the public entity of which he or she is an officer or employee. (2) Except as provided in section 3, a public servant shall not directly or indirectly solicit any contract between the public entity of which he or she is an officer or employee and any of the following: (a) Him or herself. (b) Any firm, meaning a co-partnership or other unincorporated association, of which he or she is a partner, member, or employee. (c) Any private corporation in which he or she is a stockholder owning more than 1% of the total outstanding stock of any class if the stock is not listed on a stock exchange, or stock with a present total market value in excess of$25,000.00 if the stock is listed on a stock exchange or of which he or she is a director, officer, or employee. (d) Any trust of which he or she is a beneficiary or trustee. (3) In regard to a contract described in subsection (2), a public servant shall not do either of the following: (a) Take any part in the negotiations for such a contract or the renegotiation or amendment of the contract, or in the approval of the contract. (b) Represent either party in the transaction. History: Pub Acts 1968, No. 317, § 2, by§ 10 eff September 1, 1968; amended by Pub Acts 1992, No. 9, imd eff March 10, 1992. Editor's notes: § 15.322 was repealed by Pub Acts 1975,No.227,eff March 31, 1976.The repealing act was declared unconstitutional by the Michigan Supreme Court in 2 advisory opinions (396 Mich 123 and 396 Mich 465). Statutory references: Sections 3 and 3a, above referred to, are §§15.323 and 15.323a. Miichigan Civ Jur references: Highways and Streets § 234. Public Contracts § 24. 186 '` Public Officers and Employees § 16.323 3. Limitations of actions. known to other township officials with no In action by township, brought under economic stake therein, and that such former §§16.321-15.330, which autho- other officials were not acting in illegal rized voiding of contracts that were re- complicity with individual defendants, it sullt�of certain types of improper self- would be held that accelerated judgment dealing by government officials, to void had been properly granted, in view of contract between township and certain provision of former § 15.325, which re- corporation,where undisputed pleadings quired such actions to have been brought and exhibits established that alleged im- within one year. Van Buren v Ackron proprieties initially occurred four years (1975) 63 Mich App 600, 234 NW2d 722. earlier, that such improprieties were § 15.323. Applicability of § 15.322 to public servants; re- quirements of contract; making or participating in making governmental decision; counting members for purposes of quorum; voting; affidavit; "governmental decision" defined. [MSA § 4.1700(53)] Sec. 3. (1) Section 2 does not apply to either of the following: (a) A public servant who is paid for working an average of 25 hours per week or less for a public entity. (b) A public servant who is an employee of a public community college, junior college, or state college or university. (2) A contract as defined in and limited by section 2 involving a public entity and a public servant described in subsection (1) shall meet all of the following requirements: (a) The public servant promptly discloses any pecuniary inter- est in the contract to the official body that has power to approve the contract, which disclosure shall be made a matter of record in its official proceedings. Unless the public servant making the disclosure will directly benefit from the contract in an amount less than $250.00 and less than 5% of the public cost of the contract and the public servant files a sworn affidavit to that effect with the official body or the contract is for emergency repairs or services, the disclosure shall be made in either of the following manners: (i) The public servant promptly discloses in writing to the presiding officer, or if the presiding officer is the public servant who is a party to the contract, to the clerk, the pecuniary interest in the contract at least 7 days prior to the meeting at which a vote will be taken. The disclosure shall be made public in the same manner as a public meeting notice. (ii) The public servant discloses the pecuniary interest at a public meeting of the official body. The vote shall be taken at a meeting of the official body held at least 7 days after the meeting at which the disclosure is made. If the amount of the direct benefit to the public servant is more than $5,000.00, disclosure must be made as provided under this subparagraph. (b) The contract is approved by a vote of not less than % of the full membership of the approving body in open session without the vote of the public servant making the disclosure. (c) The official body discloses the following summary informa- tion in its official minutes: 189 § 15.323 Public Officers and Er -loyees (i) The name of each party involved in the contract. (ii) The terms of the contract, including duration, financial consideration between parties, facilities or services of the public entity included in the contract, and the nature and degree of assignment of employees of the public entity for fulfillment of the contract. (iii) The nature of any pecuniary interest. (3) This section and section 2 do not prevent a public servant from making or participating in making a governmental decision to the extent that the public servant's participation is required by law. If 2/3 of the members are not eligible under this act to vote on a contract or to constitute a quorum, a member may be counted for purposes of a quorum and may vote on the contract if the member will directly benefit from the contract in an amount less than $250.00 and less than 5% of the public cost of the contract and the member files a i sworn affidavit to that effect with the official body. The affidavit shall be made a part of the public record of the official proceedings. As used in this subsection, "governmental decision" means a deter- mination, action, vote, or disposition upon a motion, proposal, recommendation, resolution, ordinance, order, or measure on which a vote by members of a local legislative or governing body of a public entity is required and by which a public body effectuates or formu- lates public policy. History: Pub Acts 1968, No. 317, § 3, by § 10 eff September 1, 1968; amended by Pub Acts 1981, No. 100, imd eff July 15, 1981; 1982, No. 207, imd eff July 1, 1982; reenacted without change by Pub Acts 1984, No. 81, imd eff April 17, 1984; amended by Pub Acts 1984, No. 184, imd eff July 3, 1984. Amended by Pub Acts 1997, No. 145, eff March 2, 1998. Editor's notes: § 15.323 was repealed by Pub Acts 1975,No.227,eff March 31,1976,The repealing act was declared unconstitutional by the Michigan Supreme Court in 2 advisory opinions (396 Mich 123 and 396 Mich 465). Effect of amendment notes: The 1997 amendment in subsection (1), replaced "shall"with"does"in the introductory paragraph; in subsection (2), paragraph (a), replaced "which"with "that"in the first sentence and added the second sentence of the introductory paragraph, and added subparagraphs (i) and (ii); and in subsection (3), replaced "shall"with "do" in the first sentence. Statutory references: Section 2, above referred to, is § 15.322. Michigan Civ Jur references: Highways and Streets § 234. Public Contracts § 24. Research references: 56 Am Jur 2d, Municipal Corporations, Counties and Other Political Subdivisions §§294 et seq. 63A Am Jur 2d, Public Officers and Employees §§335 et seq. Legal periodicals: Ethical considerations for the public corporation attorney, 1990 Pub Corp LQ 4:57. I 190 t es Public Officers and Employees § 15.323a CASE NOTES ial 'lic A village trustee in a village with a under section 1(bXii)of the incompatible of population less than 25,000 may simul- public offices act, 1978 PA 566, and may of taneously be employed by the village to not be held simultaneously by the same perform services that are unrelated to person. Atty Gen Op, October 17, 1996, and not in furtherance of his or her duty No. 6921. as trustee if duly authorized by the vil- A county commissioner participating )m lage council. Op Atty Gen, February 26, in the selection of a member to serve on a he 1997, No. 6932. county road commission is not involved 1968 PA 317(Conflicts of Interest as to in a conflict of interest because the com- 'Y3 Contracts) applies to members of county missioner is also a party plaintiff in a ict boards of commissioners, city councils, lawsuit brought against the county road of township boards, and members of any commission to compel the road commis- tly other public bodies that county boards of sion to perform its duties. Op Atty Gen, commissioners, city councils and town- June 24, 1981, No. 5926. ;SS ship boards may establish by law. Atty A member of a board of education of a i a Gen Op, June 25, 1996, No. 6906. school district who is also a member of a vit A city police chief who is deputized by collective bargaining organization which gs the county sheriff can be a county com- is representing the teachers of such missioner in a county with a population school district is not in a conflict of inter- er- under 25,000 unless the city and county est if the member discloses his or her al, contract with one another on matters membership in the organization of the ich affecting the city police department, or collective bargaining representative, ab- ilic the county board of commissioners acts stains from voting on any contract be- on non-contractual matters affecting the tween the school district and the collec- lu- city police department. Atty Gen Op, tive bargaining representative, and the August 19, 1996, No. 6913. contract has been approved by a vote of The public positions of member of a two-thirds of the full membership of the board of trustees of a county health fa- board of education. Op Atty Gen, April cility corporation and physician em- 17, 1980, No. 5682. ployed by the board of trustees at the No conflict of interest prevents retired county health facility are incompatible city employee who is receiving pension under section 1(b)(ii) of the incompatible from city from running for office of or public offices act, 1978 PA 566, and may serving as member of city's council; how- not be held simultaneously by the same ever, if retiree serves as member of city person. Atty Gen Op, October 17, 1996, council, he or she must disclose this No. 6921. interest and, if change in retirement The public positions of member of a plan affecting retirees is before council, board of trustees of a county health fa- change will require approval of two- cility corporation and physician em- thirds of full membership without vote of ployed by the board of trustees at the retiree. Op Atty Gen, November 3, 1977, county health facility are incompatible No. 5243. § 15.323a. Construction of § 15.322. [MSA § 4.1700(53a)] Sec. 3a. Section 2 shall not be construed to do any of the following: (a) Prohibit public servants of a city, village, township, or county with a population of less than 25,000 from serving, with or without compensation, as emergency medical services personnel as defined in section 20904 of the public health code,Act No. 368 of the Public Acts of 1978, being section 333.20904 of the Michigan Compiled Laws. (b) Prohibit public servants of a city, village, township, or county with a population of less than 25,000 from serving, with or without compensation, as a firefighter in that city, village, town- ship, or county if that firefighter is not any of the following: (i) A full-time firefighter. 191 § 15.323a Public Officers and Ei to ees (ii) Afire chief. (iii) A person who negotiates with the city, village, township, or county on behalf of the firefighters. (c) Limit the authority of the governing body of a city, village, township, or county with a population of less than 25,000 to authorize a public servant to perform, with or without compensa- tion, other additional services for the unit of local government. (d) Prohibit public servants of this state from purchasing at a tax sale lands returned as delinquent for taxes under the general property tax act, Act No. 206 of the Public Acts of 1893, being sections 211.1 to 211.157 of the Michigan Compiled Laws, unless otherwise prohibited by the rules of the Michigan civil service commission or the department or agency of which that public servant is an employee. History: Pub Acts 1968, No. 317, § 3a, as added by Pub Acts 1992, No. 9, imd eff March 10, 1992; amended by Pub Acts 1996,No. 203,imd eff May 17, 1996. Effect of amendment notes: The 1996 amendment added paragraph (d); and made grammatical changes. Statutory references: Section 2, above referred to, is § 15.322. § 15.324. Nonapplicability of prohibitions. [MSA § 4.1700(54)] Sec. 4. The prohibitions of section 2 of this act shall not apply to: (a) Contracts between public entities; (b) Contracts awarded to the lowest qualified bidder, other than a public servant, upon receipt of sealed bids pursuant to a published notice therefor provided such notice does not bar, except as authorized by law, any qualified person, firm, corporation or trust from bidding. This subsection shall not apply to amend- ments or renegotiations of a contract nor to additional payments thereunder which were not authorized by the contract at the time of award; and (c) Contracts for public utility services where the rates therefor are regulated by the state or federal government. History: Pub Acts 1968, No. 317, § 4, by § 10 eff September 1, 1968. Editor's notes: § 15.324 was repealed by Pub Acts 1975,No.227,eff March 31, 1976.The repealing act was declared unconstitutional by the Michigan Supreme Court in 2 advisory opinions (396 Mich 123 and 396 Mich 465). Statutory references: Section 2, above referred to, is § 15.322. Michigan Civ Jur references: Highways and Streets § 234. Public Contracts § 24. 192 Public Officers and Employees § 15.325 Research references: 56 Am Jur 2d, Municipal Corporations, Counties and Other Political Subdivisions §§294 et seq. 63A Am Jur 2d, Public Officers and Employees §§335 et seq. CASE NOTES A city police chief who is deputized by affecting the city police department, or the county sheriff can be a county com- the county board of commissioners acts missioner in a county with a population on non-contractual matters affecting the under 25,000 unless the city and county city police department. Atty Gen Op, contract with one another on matters August 19, 1996, No. 6913. § 15.325. Purpose; effect on contract; limitation on actions; reimbursement; settlement permitted; effect on bonds, notes or evidences of indebtedness. [MSA § 4.1700(55)] Sec. 5. (1) This act is aimed to prevent public servants from engaging in certain activities and is not intended to penalize innocent persons. Therefore, no contract shall be absolutely void by reason of this act. Contracts involving prohibited activities on the part of public servants shall be voidable only by decree of a court of proper jurisdiction in an action by the public entity, which is a party thereto, as to any person, firm, corporation or trust that entered into the contract or took any assignment thereof, with actual knowledge of the prohibited activity. In the case of the corporation, the actual knowledge must be that of a person or body finally approving the contract for the corporation. All actions to avoid [sic] any contract hereunder shall be brought within 1 year after discovery of circum- stances suggesting a violation of this act. In order to meet the ends of justice any such decree shall provide for the reimbursement of any person, firm, corporation or trust for the reasonable value of all moneys, goods, materials, labor or services furnished under the contract, to the extent that the public entity has benefited thereby. This provision shall not prohibit the parties from arriving at an amicable settlement. (2) Negotiable and nonnegotiable bonds, notes or evidences of indebtedness, whether heretofore or hereafter issued, in the hands of purchasers for value, shall not be void or voidable by reason of this act or of any previous statute, charter or rule of law. History: Pub Acts 1968, No. 317, § 5, by § 10 eff September 1, 1968. Editor's notes: § 15.325 was repealed by Pub Acts 1975,No.227,eff March 31, 1976.The repealing act was declared unconstitutional by the Michigan Supreme Court in 2 advisory opinions (396 Mich 123 and 396 Mich 465). Michigan Digest references: Limitation of Actions § 10. Michigan Civ Jur references: Highways and Streets § 234. Public Contracts § 24. 193 § 15.325 Public Officers and iployees Research references: 66 Am Jur 2d, Municipal Corporations, Counties and Other Political Subdivisions §§294 et seq. 63A Am Jur 2d, Public Officers and Employees §§335 et seq. § 15.326. Enforceability of contract notwithstanding con- flict of interest. [MSA § 4.1700(56)] Sec. 6. If any public entity has, prior to the effective date of this act, entered into any contract under which moneys, goods, materials, labor or services have been actually received by the public entity, which was void or voidable under any act, charter or rule of law because of a conflict of interest on the part of a public servant at the time of the execution thereof, such contract shall be fully enforceable notwithstanding such conflict of interest, by any party thereto other than such public servant. History: Pub Acts 1968, No. 317, § 6, by § 10 eff September 1, 1968. Editor's notes: § 15.326 was repealed by Pub Acts 1975,No.227,eff March 31, 1976.The repealing act was declared unconstitutional by the Michigan Supreme Court in 2 advisory opinions (396 Mich 123 and 396 Mich 465). Michigan Civ Jur references: Highways and Streets § 234. Public Contracts § 24. Research references: 56 Am Jur 2d, Municipal Corporations, Counties and Other Political Subdivisions §§294 et seq. 63A Am Jur 2d, Public Officers and Employees §§335 et seq. § 15.327. Violation, misdemeanor. [MSA § 4.1700(57)] Sec. 7. Any person violating the provisions of this act is guilty of a misdemeanor. History: Pub Acts 1968, No. 317, § 7, by § 10 eff September 1, 1968. Editor's notes: § 15.327 was repealed by Pub Acts 1975,No.227,eff March 31, 1976.The repealing act was declared unconstitutional by the Michigan Supreme Court in 2 advisory opinions (396 Mich 123 and 396 Mich 465). Michigan Civ Jur references: Highways and Streets § 234. Public Contracts § 24. Research references: 56 Am Jur 2d, Municipal Corporations, Counties and Other Political Subdivisions §§294 et seq. 63A Am Jur 2d, Public Officers and Employees §§335 et seq. § 15.328. Other laws superseded; local ordinances. [MSA § 4.1700(58)] Sec. 8. It is the intention that this act shall constitute the sole law 194 Public Officers and Employees § 15.330 in this state and shall supersede all other acts in respect to conflicts of interest relative to public contracts, involving public servants other than members of the legislature and state officers, including but not limited to section 30 of 1851 PA 156, MCL 46.30. This act does not prohibit a unit of local government from adopting an ordinance or enforcing an existing ordinance relating to conflict of interest in subjects other than public contracts involving public servants. History: Pub Acts 1968, No. 317, § 8, by § 10 eff September 1, 1968. Amended by Pub Acts 1997, No. 145, imd eff March 2, 1998. Editor's notes: § 15.328 was repealed by Pub Acts 1975,No.227,eff March 31, 1976.The repealing act was declared unconstitutional by the Michigan Supreme Court in 2 advisory opinions (396 Mich 123 and 396 Mich 465). Effect of amendment notes: The 1997 amendment deleted the former first sentence,made a stylistic change to the statutory citation and deleted a subsection reference in the current first sentence, and added the second sentence. CASE NOTES The Legislature intended that 1968 PA PA 156 to the extent that section 30 deals 317(Conflicts of Interest as to Contracts) with conflicts of interest arising out of constitute the sole law regarding con- public contracts, and 1968 PA 317 only flicts of interest arising out of public supersedes section 31 of 1851 PA 156 to contracts involving public servants. Atty the extent that section 31 could penalize Gen Op, June 25, 1996, No. 6906. a county commissioner for a conflict of 1968 PA 317(Conflicts of Interest as to interest arising out of a public contract. Contracts)supersedes section 30 of 1851 Atty Gen Op, June 25, 1996, No. 6906. § 15.329. Repeal. [MSA § 4.1700(59)] Sec. 9. The following acts and parts of acts are repealed: Compiled Law Year of act Public Act No. Section numbers sections (1948) 1895 3 6 of chapter 5 65.6 1895 215 16 of chapter 8 88.16 1931 328 122 750.122 1955 269 969 340.969 1966 317 15.161 to 15.172 History: Pub Acts 1968, No. 317, § 9, by § 10 eff September 1, 1968. u Editor's notes: § 15.329 was repealed by Pub Acts 1975,No.227,eff March 31, 1976.The repealing act was declared unconstitutional by the Michigan Supreme Court in 2 advisory opinions (396 Mich 123 and 396 Mich 465). § 15.330. Effective date. [MSA § 4.1700(60)] Sec. 10. This act shall take effect September 1, 1968. History: Pub Acts 1968, No. 317, § 10, eff September 1, 1968. 195 While the Ethics Board does not find a violation of the City of Lansing Ethics Ordinance based on the information and sales procedure that you presented and have represented you would follow in contracting with the BWL, you should be aware of the Michigan statute that applies to all public employees who contract directly or indirectly with an agency or a municipality for which they work. This statute is found at MCL 15.321 et seq., and copied with this letter for your information. Because the Ethics Board is charged with the application of the Lansing City Charter and Ethics Ordinance,the application of this statute is outside the Ethics Board's function to review. Therefore, this response to your affidavit of disclosure does not address or determine whether your contemplated sales activities with the BWL would or would not violate the statute. It is suggested that before you commence any sales with the BWL, directly or indirectly, you consult the BWL's attorney or your own attorney for an opinion regarding the applicability of the statute to your transaction. FAGROUMIUMMEthics Bd reply to aff of discl.wpd ETHICS BOARD OPINION #031 While the Ethics Board intreprets the Ethics Ordinance and will advise the Board of Water& Light (BWL) if its policy violates the Ethics Ordinance, it must be pointed out that the Ethics Board can not and will not intrepret the independent policy of the BWL beyond these parameters. You have asked the Ethics Board to interpret a specific BWLpolicy that is adjunct to the BWL's Purchasing Policy and Procedures. Specifically,you ask within the meaning of your policy,whether discounts or incentives are "monetary" and whether discounts are "gifts" under the Ethics Ordinance. This discussion will be limited to the Lansing Ethics Ordinance only. The meaning given certain words by the BWL in its policy must be left up to®the BWL's own interpretation. The Ethics Ordinance has three subsections that relate directly to giving and receiving gifts for favorable employee actions. These subsections are contained in Ordinance Section 290.04 and provide as follows: (a) No person, including any administrative board established under Article V, Chapter 2 of the City Charter, shall directly or indirectly offer or give to any officer, employee or candidate; a member of the immediate family of any officer, employee or candidate; or a business with which any officer, employee or candidate is associated any gift, loan, money, goods, services, contribution, reward, employment or other thing of value based on an agreement or understanding that a vote or official action or decision of an officer, employee or candidate would be influenced thereby. (b) No officer, employee or candidate, a member of the immediate family of an officer,employee or candidate,or a business with which an officer, employee or candidate is associated shall directly or indirectly solicit or accept any payment, gift, loan, contribution, money, goods, services, reward, employment or other thing of value based on any agreement or understanding with a person, including any administrative board established under Article V, Chapter 2 of the City Charter, that a vote or official action or decision of an officer, employee or candidate would be influenced thereby. (c) It shall be presumed that a non-mo�netary gift having a value of less than fifty ` dollars ($50.00) does not evidence a violation of paragraphs (a) and (b) of this section or of Code Section 206.15. Paragraphs(a)and (b)of this section do not prohibit communication between an individual or organization and a candidate regarding the candidate's views, record or plans for future action regarding an issue or measure in an attempt to determine a candidate's viewpoints or how the candidate plans to act in the future, if such communication results in an endorsement of the candidate, a decision not to endorse the candidate, or a contribution or expenditure required to be recorded or reported under Public Act 388 of 1976, as amended. To direct this opinion to the parameters of your questions, subsection (a), in general, prohibits anyone from offering or giving an employee anything of value based on an agreement or understanding that the giving will influence the official action or decision of the employee. This provision clearly is not limited to gifts but rather includes "any gift, loan, money, goods, services, contribution, reward,employment orotherthing of value." This subsection of the ordinance would include both discounts and incentives but, as addressed later, is only applicable when the employee is expected to give back some "official action or decision" as quiL pro guo for the gift, etc. Subsection (b)of Section 290.04 is, of course,the corollary to subsection (a). It provides that the employee will not "accept" anything of value for the "official action or decision." The ordinance is both more restrictive and less restrictive than the BWL policy quoted in your July 8, 2003 letter. As already pointed out, it is more restrictive because it applies to anything of value, not just gifts. The ordinance is less restrictive because the BWL policy is, on its face, an absolute prohibition. However, unlike the BWL's absolute policy, the ordinance prohibition is limited to the situation in which the employee agrees to enter into an understanding that the employee will take official action or make a decision. Finally, you ask whether a discount or incentive is "monetary." Again, for BWL policy purposes, the BWL must interpret its own policy and define its own terms. Despite this observation, it is the opinion of the Ethics Board that reference to a "non-monetary gift having a value of less than $50" in subsection (c) of Section 290.04 was intended as enacted by the City Council to have a commonly understood meaning. Although there does not appear to actually be a dictionary definition for "non-monetary," according to the College Edition, Webster's New World Dictionary of the American Language, the word "monetary" means "of the coinage or currency of the country." Similarly, "cash" is defined as "bills and coins; currency." Therefore, the plain and ordinary meaning of "non-monetary" in the ordinance will be considered by the Ethics Board to refer a gift in the form that is not cash money. This would include discounts or incentives in non- monetary gifts under Section 290.04(c). Although this opinion does not, and cannot, directly answer the questions you ask in your July 8, 2003 letter, it is the hope of the Ethics Board that this response will assist the BWL in formulating its own interpretation of its policy. Signed by the Members of the Board of Ethics October 14, 2003 Calvin C. Anderson, PhD, Chair Robert Nole, Vice Chair Jason Amen Hetep, Member Rev. LaSandra Jones, Member Mary Claiborne, Member Rev. John Folkers, Member Ron Frybort, Member Ellen Sullivan, PhD, Member ,"CITY OF LANSING Page 1 of 2 CITY OF LANSING AFFIDAVIT OF DISCLOSURE Date: A To: City Clerk City Attorney, or c-) Board of Ethics \� � Ci� l `l I dJI� A E-L- J. 9'LyNA.1 make the following disclosure under oath: (Name) PLEASE CHECK THE APPROPRIATE BOX OR FILL IN THE BLANKS FOR EACH OF THE FOLLOWITENS YES NO 1 1 am an ❑ elected or ❑ appointed ❑ of icer or employee of the City of Lansing holding the position of AJG L. in the 1I i-6-;QC. • Department.. oAJsC14-tad T ❑ JKl I am an immediate family member related to an elected or appointed officer or employee of the City of Lansing named , holding the position of in the department. ❑ I am a Business Associate of an elected or appointed officer or employee of the City of Lansing named holding the position of in the department. 2. ❑ 1 may derive income or benefit directly from a contract with the City or from any City action detailed below. (Charter 5-505.1) ❑ 1 may have a conflict between a personal interest and the public interest, the nature of which is disclosed below (Charter 5-505.2) [Chapter#290.04(1) of the Code of Ordinances]. ❑ 1 may have a financial interest in a matter proposed to be acted upon by the City of Lansing as described below[Chapter 290.04(1) of the Code of Ordinances]. X ❑ 1 make this disclosure because of a possible appearance that I may be in violation of or in conflict with the City of Lansing Ethics Ordinances as provided for in the Code or Ordinances and in the City Charter. 3, This position is: Full time ❑ Part time (less than 25 hours/wk) ❑ Unpaid G 4. My address is: &A40 ©F VUA E 4[►elaW, (Z3Z +c ou�*W bg,# 44AJ6/NC, M/ 5. My Business (daytime) Phone # is: Zo;?'�i http://Ibwl/lbwl/ps/msmrc/Affidavit%20of%2ODisclosure%20020418.htm 9/29/03 ►,CITY OF LANSING Page 2 of 2 i 6. PLEASE DESCRIBE IN DETAIL YOUR REASON(S)FOR SUBMITTING THIS DISCLOUSRE AND EXPLAIN WHY YOU THINK A CONFLICT MAY/MAY NOT EXIST. m,r soil , 2-fA-t-j -J. IC`y,404 IS A -J'-J -aA-4PV0 YE- D Sc.1 co,Q, Ec.,Ec�r�Icr o� Gr4AJ61AJG /w1C. Z JAJ. SHeV / OA,-.J 2b 5 uPi=--rZcoR, E�(E:7crrjZ/C, IS 09 doAJr'eAcW-Ala TAWr MAY A3 f.b Re� Ty r7-A Lam' t�3Fc1L . $e . )2e-:S PDAI S Z-96 0 Fo- 2 D Ve—PL, 5 AJ 140/2 K PEe fMWEP BY OF C•4n/.S iNG A)C. I herby certify that this disclosure is complete and accurate to the best of my knowledge,in ormation and belief. The foregoing Affidavit of Disclosure was executed on this 2 da of 20�& - S" State of Michigan, County of Subscribed and sworn to before me this d of 2 O� Nota rq ublic Deputy Clerk County,Michigan My Commission Expires: �� `� BE E LYA. BI HOP Notary Public,Clinton County,MI Aefin Mg In Ingham County,Michigan My Comm,Expires Oct.9,2W3 http://Ibwl/lbwl/ps/msmrc/Affidavit%20of%2ODiselosure%20020418.htm 9/29/03 y N S I Debbie Miner Lansing City Clerk TA cHIGP October 7, 2003 John A. Baker 819 Detroit St. Portland MI 48875 Dear Chief Baker: To confirm our telephone conversation of today, you are requested to attend the next meeting of the Board of Ethics of the City of Lansing to be held on Tuesday, October 14, 2003 at 5.30 P.M. in the City Council Conference Room on the 10th Floor of Lansing City Hall. The Board has asked that I invite you to attend this meeting so that they may review your Affidavit of Disclosure regarding your employ by the Looking Glass Regional Fire Authority. Thank you for taking the time to speak with me today, and for agreeing to meet again with the Ethics Board so that they can review your affidavit and employment status with LGRFA. If you have any questions or concerns, please feel free to contact me at 483- 4130. Sincerely, 1 � V Debbie Miner, Lansing City Clerk Ninth Floor, City Hall, 124 W. Michigan Ave., Lansing, MI 48933-1695 • 517-483-4131 • 517-377-0068 FAX