HomeMy WebLinkAbout2009.4.27 City Attorney Ethics Ordiance Proposed Amendment Questions ATTACHMENT A
CITYATTORNEY OPINION 09-13
SI�C OFFICE OF THE CITY ATTORNEY
HI �� MEMORANDUM
TO: BRIG SMITH, CITY ATTORNEY
cc: LANSING ETHICS BOARD c/o City Clerk
FROM: JOHN M. ROBERTS JR. VFPUTY CITY ATTORNEY
DATE: APRIL 27,2009
SUBJECT: ETHICS ORDINANCE PROPOSED AMENDMENT QUESTIONS
BACKGROUND
You have indicated that questions were raised at the December 5,2008 Committee of the Whole meeting
regarding the attached proposed amendment to the Ethics Ordinance. As you are aware,Draft 3 incorporates
into the proposed ordinance amendment the Ethics Board's suggested revisions to clarify the original draft.
QUESTIONS PRESENTED
The Ethics Board at its March 10,2009 and April 14,2009 meetings considered the questions put forth and
approved the following responses:
L. Question(1)Bus Hypothetical. If a bus company were to donate buses for a delegation of City
officials to another state, would this have to be reported under the revised ordinance?
2. Question (2a) LEPFA/Common Ground Hypothetical. LEPFA arranges for Common
Ground tickets for Cotuicil Members and other City officials. Must these tickets be reported?
3. Question (2b) LEPFA/Common Ground Hypothetical. If Council Members promote the
event during Council Member Comments at Meetings, does this constitute "reasonable
consideration,"such that the tickets would not need to be reported?
4. Question(3)Duty to Report. Whose duty is it to report a gift to the City itself? For example,
who has to report a donation from local labor to restore a Park facility like the scoreboard
renovation at Ranney Park? What consequence if it is unreported?
CITYATTORIVEY OPINIONNO. 09-13
5. Question (4)Proposed Amendment. The Council would like to see the other standard terms
in the ordinance added to the new section on reporting "gifts." These terms include "loan,
payment, contribution,money,"etc.
SHORT ANSWERS
1. Yes. Under the draft amendment, the bus transportation would be a service with a value
donated to the City officials as a delegation to another state and arising from the officials'
employment with the City.
2. Yes. The tickets are the type of gift that the ordinance amendment is especially meant to reach.
The intent behind the ordinance is transparency so that if a gift is donated,it may be scrutinized
to insure that it does not violate the ethics ordinance prohibitions of Section 290.04(a)and(b),
i.e.,the gift is not to be given for the agreement or understanding that it will influence a vote or
official action or decision of the recipient.
3. No. There is no contract between the Council or individual council members that they are to be
given the tickets in return for promoting the event. If there was such an agreement, it would
violate Section 290.04(a) and(b).
4. The duty to report is on the individual,
5. The ordinance definition of"gift"provides for Council's concerns as to what is included'within
the meaning of this term.
ANALYSIS
Question (3) Duty to Report
It is the individual recipient's duty to report whether the recipient is a City officer or employee. In the
example in Question 3, it is the City (as a legal entity) that is receiving the benefit of the gift and not an
individual. If it is a gift to the City,there should be reasonable evidence of the offer and acceptance of this
gift by the appropriate City representative. However,outside of appropriate documentation of the offer and
acceptance,reporting of the gift to the City is not otherwise required under this Ethics Ordinance provision.
Question(4)Proposed Amendment
The concerns that Council express regarding what should be included as a gift are already addressed in the
ordinance. Ordinance Chapter 290 contains a defnution Section 290.02, which includes the following
definition of"gift":
6yhn ans--payment,-subseriptiozn-advance-farbe-aranc�r-ende-r4ng-or de-posit of
money, services or anything of value,made without the exchange of reasonable
consideration. Gift does not include anything of value received as a devise,bequest or
2
CITYATTORNEY OPINIONNO. 09-I3
inheritance or a loan or credit arrangement made according to reasonable and prevailing
rates and terms, and which does not discriminate against or in favor of an individual who
is an officer or employee because of such individual's status as an officer or employee.
"Gift" does not include a contribution or expenditure required to be recorded or reported
pursuant to Public Act 388 of 1976, as amended,being M.C,L.A. 169.201 to 169.282.
i "Gift" does not include a gift received from one or more of the following:
(1) A relative within the fifth degree of consanguinity,under the civil law
computation method,to the officer or employee, or the spouse of such a relative; or
(2) A spouse of the officer or employee, or a spouse's relative within the fifth
degree of consanguinity to the spouse,under the civil law computation method.
Simply stated,the"gift"includes"anything of value."
I trust this answers the questions presented. If there are any more advisory questions or concerns,I will be
glad to present them to the Ethics Board at their next meeting.
JMR/sp
3AAttorney_Staff\OPINIONS(FORMAL)\Opinions-Working Copies in DOC and WPD\2009\09-13 Ethics Brd gift ord amend.doc
3
i
DRAFT 43
September 12, 2008
1 ORDINANCE NO.
2 AN ORDIINTANCE OF THE CITY OF LANSING,MICHIGAN,TO AMEND
3 CHAPTER 290, SECTION 4, OF THE LANSING CODIFIED ORDINANCES TO PROVIDE
4 THAT A CITY OFFICER OR EMPLOYEE WHO RECEIVES A GIFT FOR HIMSELF,
0 i
S HERSELF, OR ON BEHALF OF THE CITY, WITH A VALUE OVER$50. 0 FROM
6 SOMEONE NOT RELATED TO THE DONEE BY BLOOD OR MARRIAGE SHALL BE
7 REQUIRED TO SUBMIT A LETTER OF DISCLOSURE TO THE CITY CLERK FOR
8 TRANSMISSION TO THE ETHICS BOARD FOR APPROPRIATE ACTION.
9 THE CITY OF LANSING ORDAINS:
10 Section 1. That Chapter 290, Section 4, of the Codified Ordinances of the City of
11 Lansing, Michigan,be and is hereby amended to read as follows:
12 290.04 PROHIJBITIONS
13 (a) No person,including any administrative board established under Article V, Chapter 2 of
14 the City Charter, shall directly or indirectly offer or give to any officer, employee or
15 candidate; a member of the immediate family of any officer, employee or candidate; or a
16 business with which any officer, employee or candidate is associated any gift,loan,
17 money, goods, services,contribution,reward, employment or other thing of value based
18 on an agreement or understanding that a vote or official action or decision of an officer,
19 employee or candidate would be influenced thereby.
Approved as to fonn:
City Attorney
Dated:
I
DRAFT#3
September 12, 2008
1 (b) No officer, employee or candidate, a member of the immediate family of an officer,
2 employee or candidate or a business with which an officer, employee or candidate is
3 associated shall directly or indirectly solicit or accept any payment, gift,loan,
4 contribution,money, goods, services,reward, employment or other thing of value based
5 on any agreement or understanding with a person,including any administrative board
6 established under Article V, Chapter 2 of the City Chatter,that a vote or official action or
7 decision of an officer, employee or candidate would be influenced thereby.
8 (c) A CITY OFFICER OR EMPLOYEE WHO RECEIVES A GII T FOR HIMSELF,
9 HERSELF, OR ON BEHALF OF THE CITY, WHICH IS ATTRIBUTABLE TO OR
10 ARISES FROM HIS OR HER CITY EMPLOYMENT OR CAPACITY WITH THE
11 CITY AND THAT HAS A FAIR MARKET VALUE IN EXCESS OF $50.00, SHALL,
12 WITHIN 30 DAYS OF THE RECEIPT OF THE GIFT,MAKE A DISCLOSURE OF
13 THE GIFT IN WRITING TO THE CITY CLERK. THE DISCLOSURE SHALL BE
14 KEPT ON FILE IN THE OFFICE OF THE CITY CLERK FOR PUBLIC REVIEW.
15 THE WRITTEN DISCLOSURE SHALL INCLUDE AND DESCRIBE THE GIFT,ITS
16 INTENDED PURPOSE OR USE,ITS ESTIMATED FAIR MARKET VALUE,AND
17 THE DATE OF RECEIPT. THE CITY CLERK SHALL FORWARD THE WRITTEN
18 DISCLOSURE TO THE ETHICS BOARD FOR REVIEW AND SUCH ACTION AS
19 THE BOARD DETERMINES IS APPROPRIATE UNDER THE CHARTER AND THIS
Approved as to Conn:
City Attomey
Dated:
DRAFT 43
September-12, 2008
1 CHAPTER. THE DISCLOSURE REQUIREMENT SHALL NOT APPLY TO ANY
2 OFFICIAL RECOGNITION GIFT RECEIVED AT THE TIME AN OFFICER OR
3 EMPLOYEE SEPARATES FROM THE CITY OR ANY GIFT RECEIVED FROM
4 SOME,ONE RELATED TO THE DONEE BY BLOOD OR MARRIAGE.
5 It shall be presumed that a non-monetary gift having a value of less than$50.00 does not
6 evidence a violation of paragraphs (a) and(b) of this section or of Code Section 206.15.
7 Paragraphs (a) and (b) of this section do not prohibit cornmunication between an
8 individual or organization and a candidate regarding the candidate's views,record or
9 plans for future action regarding an issue or measure in an attempt to determine a
10 candidate's viewpoints or how the candidate plans to act in the future, if such
11 communication results in an endorsement of the candidate, a decision not to endorse the
12 candidate, or a contribution or expenditure required to be recorded or reported under
13 Public Act 388 of 1976, as amended.
14 (d) No officer or employee shall falsely represent his or her personal opinion to be the official
15 position or determination of the goverinnental body of which he or she is a member or
16 employee. This subsection shall not apply to statements by elected officials made in the
17 course of fulfilling the responsibilities of their office or in running for election to office,
18 nor shall it apply to the professional opinions of City officers or employees rendered in
19 the course of performing their duties,provided that such opinions are clearly identified as
3
Approved as to fomr
City Attorney
Dated:
DRAFT#3
September 12, 2008
1 professional opinions.
2 (e) No officer or employee shall divulge to any unauthorized person confidential iirfonnation
3 acquired in the course of holding his or her position in advance of the time prescribed by
4 the governmental body of which he or she is a member or employee for its authorized
5 release to the public.
6 (f) No officer or employee shall use, or allow others to use,the authority,title, or prestige of
7 his or her public office for the attainment of the officer or employee's, or that of a member
8 of his or her immediate family's,private financial benefit in any manner that is
9 inconsistent with public interests.
10 (g) An officer or employee shall not use personnel,resources,property or funds under his or
11 her official care and control to obtain personal financial gain in addition to his or her
12 official remuneration as an officer or employee for himself or herself, a member of his or
13 her immediate family, or a business with which either is associated.
14 (h) No officer or employee shall act as an attorney, agent or representative of a person other
15 than himself or herself, before the governuriental body of which such officer or employee
16 is a member.or employee. This provision shall not prevent an officer or employee from
17 performing his or her responsibilities as an officer or employee.
18 (i) No officer or employee shall act on behalf of the City by malting any policy statements,
19 promising to authorize or to prevent any future action,agreement or contract,when such
4
Approved as to form:
City Attomey
Dated:
DRAFT#3
September 12, 2008
1 officer or employee has,in fact,no authority to do so.
2 (j) No officer or employee shall engage in a business transaction in which the officer,
3 employee, a member of his or her immediate family, or a business with which either is
4 associated.,may profit from his or her official position or authority, or benefit financially
5 from confidential information which the officer or employee has obtained or may obtain
6 by reason of that position or authority. This subsection shall not prohibit employment or a
7 contract to conduct instruction which is not done during regularly scheduled working
8 hours, except for annual leave or vacation time,if the officer or employee does not have
9 any direct dealing with or influence on the employing or contracting person or entity in
10 performing his or her official duties for the City.
11 (k) Except as otherwise provided by law,no officer or employee shall participate in, vote
12 upon or act upon,contracts,the making of loans or grants of public funds, the granting of
13 subsidies,fixing or rates,issuance of permits or certificates, or other regulation or
14 supervision relating to any business in which the officer or employee, or a member of his
15 or her immediate family, or any business with which either is associated has a financial or
16 personal interest,other than an interest as a citizen, officer or employee of the City.
17 (1) In addition to the provisions set forth in Charter Section 5-505.1,no officer or employee,
18 shall fail to disclose in writing to the Board of Ethics a conflict of interest or any financial
19 interest other than as a citizen of the City in any matter prior to any action by the City in
5
Approved as to fonn:
City Attorney
Dated:
i
DRAFT O
September 12, 2008
1 that matter.Nothing in this section shall prohibit the request of an informal opinion by an
2 officer or employee from the Ethics Board regarding a potential conflict of interest.
3 Neither the filing of a request for an informal opinion, nor the malting of a statement
4 concerning a potential conflict of interest pursuant to Section 290.05(a), shall create a
5 presumption or inference that an officer or employee actually has a conflict of interest
6 concerning the matter filed with the Ethics Board or disclosed on the public record.
7 (in) No person shall directly or indirectly solicit, agree, aid or assist any officer or employee to
8 violate this chapter.
9 (n) The provisions and prohibitions set forth in this section 290.04 shall not be construed to
10 prohibit or restrict City employees from negotiating, entering into or enforcing a
11 collective bargaining agreement between the City and a labor union to which the
12 employee belongs pursuant to State or Federal Law.
13 (o) The provisions and prohibitions set forth in this section 290.04 are subject to the
14 applicable provisions and procedures of the State Statute entitled"Contracts of Public
15 Servants with Public Entities," being MCL 15.321 et seq,, as the same may be amended
16 from time to time.In the event of a conflict between this section 290.04 and the State
17 Statute in any particular case,the State Statute shall prevail.
18 Section 2. All ordinances,resolutions or rules,parts of ordinances,resolutions or rules
19 inconsistent with the provisions hereof are hereby repealed.
Approved as to fonn:
City At(omey
Dated:
DRAFT O
September 12, 2008
1 Section,3. Should any section, clause or phrase of this ordinance be declared to be
2 invalid,the same shall not affect the validity of the ordinance as a whole, or any part thereof
3 other than the pant so declared to be invalid.
4 Section 4. This ordinance shall take effect on the 3Oth day after enactment unless given
5 immediate effect by City Council.
Approved as to form:
City Attorney
Dated:
5:\Attontcy_StnMORDINANCE51Ed»cs-Internal Dra$s\EOiics Ordinance 290.04 BOE Draft#3 9.12.08.doc