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HomeMy WebLinkAbout2004 01 13.notes.Board of Ethics NOTES FROM ETHICS BOARD MEETING OF JANUARY 13, 2004 PRESENT: Nole, Amen Hetep, Claiborne, Folkers, Frybort, Jones (arrived at 5:45 p.m.), Merchant ABSENT: Sullivan Motion by Member Folkers to amend the agenda by moving the interview with Mr. John Klein up to the next order of business, and approving the agenda as amended. MOTION CARRIED 6/0 Motion by Member Folkers to correct the spelling of his name on the bottom of page 6 of the December 2, 2003 minutes and by correctly stating that Member Claiborne was absent and Member Jones was present and that Member Jones made the motion to move items #1 and #6 up to the next order of Business under Secretary’s Report, and to approve the minutes as corrected. MOTION CARRIED 6/0 • Interview of John Klein, Construction Rehab Specialist in the Code Compliance Division of the Planning and Neighborhood Development Department Member Frybort asked Mr. Klein for clarification about his affidavit of disclosure, specifically, Mr. Klein states that he does not solicit business in Lansing, but he does indicate that he conducts business in Lansing if he is referred by someone who knows him, or by City Employees. Mr. Klein answered that the difference is that he does not advertise directly in Lansing. Member Folkers asked Mr. Klein what percentage of his business is currently conducted in Lansing. Mr. Klein responded, about 5%. He works nights and weekends at his business. Member Folkers asked Mr. Klein how he gets these referrals. Mr. Klein said that he has an advertisement in the phone book. He works for the City and has for 10 years. He has been around many of these types of businesses through previous contacts. People in the building Department and Parks Department refer jobs to him too. Member Folkers asked Mr. Klein if he encourages City Employees in other departments to make referrals to him? Mr. Klein responded in the negative, saying that at times he makes referrals to other people in the business so as to avoid conflict of interest situations. As a construction manager he has contact with qualified managers that do work with his clients. He does not get business through his day to day activities for the City. Chairman Nole asked Mr. Klein to define his job with the City of Lansing. Mr. Klein said that he works with programs funded by Federal Block Grant monies. He oversees the construction process. He gets referrals in, and if they qualify within income criteria and need roofs or other construction repair at their homes, he performs inspections with appropriate contractors, be it mechanical, electrical, structural, plumbing, etc. and oversees the contract for repair of the home. Chairman Nole asked Mr. Klein how he proceeds when specific problems are identified during an inspection. Mr. Klein said they identify the problem, write specifications for repair and he oversees the construction process once the bids are awarded. Everything is handled by a sealed bid process. Once a bidder is selected he oversees their work. After a final inspection is complete he authorizes payments and the City pays the contractor. Member Frybort asked Mr. Klein if he does any work in the City for individual houses that are not eligible for HUD funding? Mr. Klein said probably not. He is not available for the HUD Program. You have to go through other programs to qualify for HUD funding. He has done work for one of his wife’s friends for 20 years at no charge. He described an incident in which a couple had a furnace funded by HUD that did not work properly. He went over and replaced an igniter in the furnace for free so that the family could have heat. Member Folkers asked if there were a possibility for a situation to exist where he might oversee and inspect his own work. Mr. Klein answered no. Member Frybort asked Mr. Klein if there is some benefit in the referral process in picking one contractor over another? Mr. Klein responded no. Some contractors do not even know he has a business. Dennis Lysakowski, his supervisor, selects the contractors. He does have a choice as to which contractor to solicit bids from, but the bidding process is sealed and all bids are opened at one time. He only makes an estimate as to what the job should be bid at. City Attorney Roberts reiterated; Mr. Klein works for the City of Lansing in a full time professional capacity, functioning through the Development Division. The nature of his projects are generally low or moderate income applicants that apply for City assistance, correct? Mr. Klein responded in the affirmative, saying that these projects are low to middle class homes funded by the Federal Government. Mr. Roberts clarified that in order to be able to use the City services that he manages, there are application limitations. Mr. Klein said you must own your own home and fall within certain income guidelines. Everyone in the home over the age of 18 must submit income verification. Applicants must have owned the home for one year and the property taxes must be paid up to date. Attorney Roberts asked Mr. Klein if he does these jobs privately? Mr. Klein responded in the negative. Attorney Roberts asked Mr. Klein if he were a licensed heat and air conditioning contractor. Mr. Klein responded in the affirmative. Attorney Roberts asked Mr. Klein if that is the type of business he does privately? Mr. Klein responded affirmatively. Attorney Roberts asked Mr. Klein if the work he does privately is limited to that type. Mr. Klein responded affirmatively. Attorney Roberts asked Mr. Klein if in the past two years he has done any private work that was not heating or air conditioning. Mr. Klein answered no. Attorney Roberts asked Mr. Klein if he has had occasion to bid on jobs done through the City of Lansing. Mr. Klein responded negatively. Attorney Roberts asked Mr. Klein if the City Development Office has a list of approved heating and air conditioning contractors. Mr. Klein responded affirmatively. Attorney Roberts asked Mr. Klein if his name appears on any of those lists. Mr. Klein answered no. The way the City uses the list is to issue a request for proposal (RFP). Attorney Roberts asked Mr. Klein how many contractors are on the approved list. Mr. Klein said about 15 heating contractors and about 25 building and electrical contractors. Attorney Roberts asked Mr. Klein how many people in the Development Division do what he does. Mr. Klein answered three (3). Attorney Roberts asked Mr. Klein if he gets referrals from any of the contractors or subcontractors on the list. Mr. Klein answered no. Attorney Roberts asked Mr. Klein if he gets referrals from any of the other types of contractors on the list. Mr. Klein answered no, none of the contractors on the approved lists make referrals to him. Attorney Roberts asked Mr. Klein if there is an opportunity for one of the people one the approved list of contractors to tell someone else that he does that type of work, or is it the type of work they already do themselves? Mr. Klein said it is the type of work they already do themselves. Attorney Roberts reiterated; so there is no reason to bring you in to do the kind of work they already do. Mr. Klein said that it could happen, but there is no reason for it. Member Frybort asked Mr. Klein if he is involved in the determination of eligibility of an applicant for a City program. Mr. Klein answered no, that determination is made through financial agents. Member Frybort asked Mr. Klein if an applicant were determined not to be eligible for a City program would there be any opportunity to favor him in a referral process? Mr. Klein answered no, if the City’s program could not help the applicant, then they would not be able to afford his services. If he took these kinds of jobs he would be donating his work and time. CITY ATTORNEY’S REPORT: Mr. Roberts stated that he will present his report during consideration of complaint # 2003-1b OLD BUSINESS: 1. Affidavit of disclosure filed by Daniel J. Flynn, Principal Consultant in the Project Engineering Department at the Board of Water & Light Attorney Roberts directed board members to the third (3) paragraph on page 6 of the minutes of December 2, 2003, where the Board asked Mr. Flynn if he had any way of choosing a business of which his son is an employee. Mr. Flynn’s answer was that this is not his area of expertise and he does not have anything to do with bids as to electrical engineering. He is part of a group. He looks at bids in his area of expertise which is not in the same area as his son. He says his son could benefit because he works for someone who could be a bidder on a job. There is no way a relationship could exist between father and son and the work they could do for the Board of Water & Light. He does not see any nexus between his function at the Board of Water & Light and the ability to directly affect his sons ability to get work. Mr. Flynn was very open in his discussions with the Board. The filing of the affidavit was by way of excess caution and he has not even able to find a possibility that Mr. Flynn would be able to create a circumstance where he would be able to violate the ethics ordinance. Motion by Member Frybort that the City Clerk write a letter to Mr. Flynn thanking him for filing the affidavit of disclosure and for meeting with the Board to clarify his affidavit. Further that at the meeting held January 13, 2004 the Board of Ethics found no immediate evidence of a conflict of interest, but would caution him that if his duties, or job change in the future he is requested to file a new affidavit. MOTION CARRIED 7/0 2. Affidavit of Disclosure filed by Brian J. Davis, Fire Inspector in the LFD Attorney Roberts stated that he has reviewed the general employment relationship, the ethics ordinance, the charter provisions on possible conflicts and Michigan State Statute. Mr. Davis works for the Fire Marshal and evaluates businesses for certain types of hazards within the City. Mr. Davis proposes that he would be doing fire evaluation inspections and hazmat inspections in his private business. This is a conflict because these are the same types of work that he would be paid for by the City and also doing privately. It is a conflict because, if he finds violations in his job for the City he is required to call it out as a violation, and make sure that corrective action is taken, or that the facility is shut down if corrective action is not taken. He has the force of law to ensure that corrections are made, or the business is not continued. But privately, he would be pointing it out as something that needs to be corrected and not calling it out, because that would not be the focus of what he was doing, but to do that he would have to do one of two things; not do his job as a fire inspector, or not do that inspection for the Fire Marshal’s Office. This is the conflict. Under subsection L of 290.04 of the Ethics Ordinance, found on page 20 of the Ethics Manual, “no employee shall fail to disclose in writing to the Board of Ethics any conflict of interest or any financial interest...” In the City Charter on page 13 in section 5-505 subsection .1 it says that before an employee will enter into contract or take any action, they have to file an affidavit of disclosure. Subsection .2 says that everything that is not a contract or action described as “any other conflict between personal interest and the public interest,” there will be disclosure. in subsection .3 it says “except as otherwise provided by law, no employee may participate in any matter if a conflict of interest exists.” It is the Charter section that serves as the prohibition. Based on that wording it is his view that Mr. Davis has a direct conflict of interest in his proposed activity which is prohibited under the City Charter. Mr. Davis then, could not do his business inside the City of Lansing. But, he can outside of the City of Lansing, so long as he does not say in the business literature that he is a City of Lansing Fire Fighter. Member Merchant asked Attorney Roberts why Mr. Davis could not cite his employment with the City in the literature. He has to be a licensed inspector to conduct these types of inspections and to be a licensed inspector, he has to be a certified fireman. Attorney Roberts said that the City’s concern is that Mr. Davis is going to hold himself out to be a Lansing Fire Department Employee as part of his literature. Motion by Member Amen Hetep that the Board send Mr. Davis a letter stating: “It is the determination of the Board of Ethics that the conduct which is the subject of Your disclosure gives rise to a clear and present conflict of interest as long as the proposed outside work would be performed in the City of Lansing and thus, you may not perform the outside employment you describe within the City. There would not be the same conflict for work outside the City but your private employment advertisements and literature may not make reference to your LFD employment.” MOTION CARRIED 6/0 ETHICS BOARD COMPLAINT #2003-B Public Comment: John Pollard of 1718 Blair St. said that he has filed these complaints and is waiting to see what the Board will do. Many Councilmembers have affiliations with LCC. Five out of Eight Members do. It only takes 5 votes to pass something. Section 5-501 of the City Charter says that before any vote takes place, voting members should make a disclosure. These matters go to the Planning Board, the Parks Board or whatever Committee has jurisdiction. He wants the Ethics Board to send this matter back to the City Council and require them to do it over again, and if the Mayor has signed this ACT then he will file a complaint against him too, because he sits on the LCC Foundation. ACT-09-02 gave the right of way of 3-4 acres of land to LCC forever. Member Frybort asked Mr. Pollard if the issue he is most concerned about is the conflict, or the timing of the disclosure? Mr. Pollard said that it is the loss of the appearance of impartiality. This loss was made on November 24, 2003 when Council approved this matter. Prior to that they went to the Committee of the Whole and to the Planning and Development Committee meetings and when a citizen asked Councilmember Jeffries if he was a member of the LCC Presidents Advisory Committee he refused to answer. Member Frybort asked Mr. Pollard if, in addition to the lack of impartiality, he is also claiming a personal gain on the part of someone on City Council. Mr. Pollard answered no, because Councilmember Bauer requested and received recusal from voting on this item. Member Merchant asked Mr. Pollard what type of remedy he is seeking. If his concern is the appearance of a lack of impartiality, and the Councilmember makes a disclosure and then votes anyway the disclosure is irrelevant. Does Mr. Pollard seek recusal? Mr. Pollard said Councilmembers should disclose their lack of impartiality at the front end of their considerations. He wants this issue sent back to Council to make them do it over again and inform them that they are not to do this again. Member Frybort said that many people in town have connections to LCC. Suppose you are an LCC graduate and are proud of the fact that you got your degree from there, is that something that affects impartiality to Mr. Pollard? Mr. Pollard said that in a political organization that should be disclosed on the front end of consideration. Member Claiborne asked Mr. Pollard if it is his claim that this disclosure was made at the last minute at the City Council meeting of November 24, 2003, but in order for it to get to the Council meeting it had to be approved at the Committee of the Whole and prior to that at the Committee on Development and Planning. Mr. Pollard responded in the affirmative. Member Merchant said he is unclear of what needs to be disclosed. Councilmember Wood is on the Dental Hygienist Ad Hoc Committee. That is as far away from land use issues as you could think of. What would she need to disclose? Mr. Pollard said that the College is proposing the use of this land for a health related facility. Carol Wood, City Councilmember At-Large, thanked the Board of Ethics for allowing her to speak to them. She does sit on an Ad Hoc Committee for LCC Dental Hygienist Program. She has been to two (2) meetings. They meet infrequently, quarterly, or twice per year. She has only worked on programs for oral health and indigent care. These oral hygienists come into the Ingham Regional Medical Center to provide that care. She asked the City Attorney on several occasions if there was a conflict of interest between her position on City Council and her voluntary role with this Ad Hoc Committee. He told her no. At the Committee of the Whole meeting when it comes to them, it comes first as information, then it is put on the floor for the committee to talk about it. There was discussion about it at that time and Mr. Pollard brought up the question of Councilmember Jefferies possible conflict of interest and whether he should have requested recusal, or if anyone else had a conflict. The City Attorney said no. On the floor of the Council Meeting on Monday night, November 24, 2003 she again asked the City Attorney if she had a conflict, and he again told her no. This is something that was discussed among committee members, about many of them having one connection or another with LCC. The Ad Hoc Committee that she serves on had nothing to do with this property or any money. It had no real power. It only deals with getting dental hygiene to indigent people at Ingham Medical Center. Member Jones asked Councilmember Wood how long the Ad Hoc Committee has been in existence? Councilmember Wood said that she has no idea how long it has been around. She was involved with dental hygiene on another committee and was asked to join this committee. Member Frybort asked Councilmember Wood if there is any ability for members of the public to know about the Ad Hoc Committee meetings? Councilmember Wood answered that they have minutes and agendas and are posted on public bulletin boards, because they are public meetings. Member Nole asked Attorney Roberts if he has something to share about the response to complaint 2003-01a. Attorney Roberts said that the advisory board that Ms. Wood sits on has a purpose statement. He does not think they are an Ad Hoc committee, they are advisory and exist primarily to provide an effective means of liaison communications between dentists, dental hygienists and dental hygienist programs that shall provide advice and resources to provide quality dental hygiene programs at LCC. He read the mission statement of the board. He said that there is no purpose clause for the Alumni Association, but it is to build an active alumni association at LCC through frequent communications and active meetings. He did draft an analysis as he had in the prior complaint. The City Council has a specific charter provision, outside of the ethics provisions, that relates to voting. That provision says they have an absolute obligation to vote unless there is a financial gain to the Councilmember. Under that provision there is no permission for a councilmember not to vote because of an appearance of a lack of impartiality. The question they have to answer in deciding whether they have to vote or not is whether they have a conflict of interest. The area that Mr. Pollard cites in his complaint is a list of guidelines that is intended to sensitize councilmembers and non- councilmembers as to the requirement for disclosure. This ordinance does not have a prohibition against an appearance of conflict, but a prohibition against a conflict. Mr. Pollard is reading the guideline as a strict requirement and saying that if you do not follow that then you are unable to vote on an issue, but the Charter requires Councilmembers to vote unless there is a conflict of interest. The citation used by Mr. Pollard is intended to sensitize councilmembers as to whether they should disclose or recuse themselves. On many occasions the City Attorney told Councilmembers that there was no conflict of interest. Mr. Pollard is reading the provisions from the Ethics Manual as an absolute requirement. That is not what the Charter says. With regard to a vote being taken at the Committee of the Whole, this committee does not take any vote on this issue. Council standing committees take action by deciding whether or not they will bring a matter out to the whole Council for a vote. The Development and Planning Committee voted to bring this matter out to the full Council for action. At the Committee of the Whole meeting the chair of a particular committee reports to Council about their determination. The matter is placed on the Council agenda by the particular committee, not the Committee of the Whole. Mr. Pollards objection is about the vote taken at the Committee of the Whole. No vote was taken at the Committee of the Whole. The remaining complaint is about the form of disclosure that was given, prior to the vote being taken at the City Council meeting. Mr. Pollard feels this disclosure must be made in writing. That is not borne out in the Charter. In fact, according to the Charter Councilmembers must vote on matters before them unless they feel that a conflict is present, and then they must request recusal by their colleagues and that recusal must be granted. Filing of an affidavit is one method, but if they have already made a disclosure and been told that they must vote then the nature of their disclosure is without import. In Ethics Board Opinion #32 the conflict of interest section of the Charter, 3-205 is the controlling section. This is not the same language as in 5-501. An Attorney General Opinion exists and interprets state statute that deals with conflict between different offices that public employees can have. It deals directly with this type of issue. It has to do with whether or not an office that a City Councilmember holds has a direct conflict by it’s nature with the office at LCC. The Attorney General Opinion says there is no inherent conflict between someone on City Council and on the Board of Trustees for a community college as long as there is no contract being negotiated between the two bodies. If such a conflict exists, you cannot sit on both boards. At the time of the vote on November 24, 2003, Councilmember Jeffries had resigned his seat on the Board of Trustees of LCC. As to the Boards that Councilmembers Leeman and Wood were sitting on, they were advisory boards that do not have an ability to contract with the City of Lansing or anyone else. Individual boards do not have that authority. Because these boards cannot contract then there cannot be, under state statute a conflict that would prohibit serving both on boards and on the City Council. Lastly, the question is whether the Mayor can sign something that the Council acts on. The Mayor does not sign something that the City Council adopts. He has veto power, but he does not sign their actions. The Ethics Board has a prior opinion and a lack of incompatibility, it is the recommendation of the Attorney that the Ethics Board find that there is no violation. Member Frybort asked Attorney Roberts if the Ethics Board could characterize his statement as saying that Councilmembers can take whatever supportive action they choose, and no action would require disclosure until an actual vote is taken which would be at the City Council Meeting? Attorney Roberts responded, saying they could not do something actively that would be in conflict with their duty as a councilmember. He does not like to hypothesize. Member Frybort asked Attorney Roberts if there is a time frame that he is aware of about disclosures being made? Attorney Roberts answered that there is no requirement for disclosure if there is no conflict, even if a councilmember thinks they have a conflict and asks for recusal, the full council can disagree with them. If the full Council does not approve the recusal then the member is required to vote. Mr. Pollard said that the City Charter established the Board of Ethics and spells out it’s duties. He thinks that Charter section 5-501 goes farther than the Ethics Ordinance in this situation, in which they have an appearance of the loss of impartiality they are subject to the Board of Ethics scrutiny. Motion by Member Jones to accept the City Attorney’s preliminary written analysis as Ethics Board Opinion #33. MOTION CARRIED 6/0 Motion by Member Folkers to remove the requirement for confidentiality in the matter of complaint #2003-a and #2003-b. MOTION CARRIED 6/0 Motion by Member Frybort to accept the amended schedule of meetings for the 2004 calendar year. MOTION CARRIED 6/0