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HomeMy WebLinkAboutCanadayMark Affidavit Disclosure 1990 CITY OF LANSING BOARD OF' ETHICS Oc-ober 22 , 19110 Honorable Mark H . Canady Lansing City Councilmember c/o Howard & Howard Suite 500 , 222 North Washington Square Lansing, Michigan 40933 Re: Disclosure of Confli.et in Matter Before The Ci-.1 Council Dear Councilmember Canady: The Board of Ethics has received a disclosure which indicates you represent Joel Ferguson who is involved in a matter now before. the City Council. The disclosure indicates that you are recusing yourself in the matter. While this may be necessary in this instance with this client, please note that your problem may be more extensive than you are aware. Your Disclosure does not make it clear that your firm has also disqualified itself from representing Mr. Ferguson. You may wish to amend your disclosure, therefore, to clearly indicate that this is the case. You may also wish to initiate a review of all lawfirm clients and pending matters to bring yourself in conformity with the applicable bar rules . Enclosed is a copy of Formal Opinion C-241 which was issued by the State Bar of Michigan and applies to your circumstance. As I understand the opinion, neither you nor any member of your firm may represent any individual or organization in any .matter at any level of City government, with the possible exception of some matters involving only the judicial branch. After reviewing same, you may wish to make further inquiry of the Ethics committee of the Bar for further detail or clarification. I commend you for so promptly requesting advice from the Board of Ethics regarding compliance with the ethical standards required of Councilmembers. We are especially suited to render such advice, and welcome any advance inquiries. If we can assist you in any way, through formal or informal inquiries, please let me know. Very truly yours, • J eF. RTZ CLansing Board of Ethics t x-h F-v_r Ethics Opinions y Ji t ..'A"iy�� ''T" lawyer retain§control of SNe have: yiridicated that possibility of litigation between that eat becomes Commit `;it is 4.share- .. person and the city, creating an ins - tent for paymen"of up holder,or eta of hp firm.to orable conflict. CI-1003 (City attorney to 3Q of the recirery before the appear t ad and members of the same firm may not 'an<attorn a befars'the"ci council're re- law*_4- sows what the rt motive• Pl?�� _" expe wrt � t P n or even who.they will p. member clie .. "�� � n�u m applications . .that are....'made through the consultant, -sham" �T- same . mig�result in litigation between such w wh ch�,h twins .substantial ,authority law firm_ .C[._ e'same vein,an persons and the city);",Q-192 (A part- with respect.to which experts and how atto "Hof"a city ner;ahanehQlderor employee of a law many experts are made available.Thus, ' coumsy de5endants :firm cannot edhic;ally.iepresent_a client the contingent fee contract results in charged withiilstfias" that city's-before�sn' dministrative board on substantial practical restrictions on the ordinarims.'Q-419.;:See also, CI-42. which at partner, shareholder or Pe game;firm sits. . nd f the sale onUand use of ni 1' _+ � , y N"Yiat GZlB and a-382 j gmeat, 'to.which the client is "irnpe evaa` tribunal,leg :maY `suggeat�a different result, they ' cicisl." may lie distiaguished becausethey in vas F i$]ativg. ::' .• vw w -. frt _- (x rehensi ru " •F this. ad opinion opinioa.�AlthouSh. p _ Le dressason1Y-the:Model Rules. the a Mod"iesulis rwuld obtain under the el Code.) by the 1�' "� Professlonalx `,�former_•„ i Opinion'87�54 �t 'Cr: po ---63 �.• werr , ' =.ti. _.� mewl member fivm,msa which ,..;. • ! the law' dpalSedv+rotild not . resolve the.:issue While it is in the public interest tio'encourage the par- ticipation-of. N in public life,_' r- such withdrawah from specific issues FORMAL OPINION Cr241 would deprive citizens of the represen- (July, 1988) tative they elected to exercise judgment in just such matters.-• An attorney may not represent a client Further,in the quasi-judicial con- before a city council or other govern.- text in which city administrative mat- `` ' ing body when a member of that 'sr arise, all parties may not be rep- governing y is also; s psrfm.er, resented by coumel,as they.would be shareholder or cwnpll�a of tho swue in the judicial rrera, nor may an issue law firms Neith-m may ffis attorney necessuily bo contested. Thus, the appear raprsserrting a client before "safety valv9 of a request for recusal any governmental body which •is may not exist as a practical matter. subordinate to the governing body The need for such a"safety valve" on which a partner, shareholder also lends credence to a need to avoid or employee of the same firm sits. such apparent conflicts. Cf., C-212 - DR 9-101(c); DR 8-101. (City attorney may not represent a per- rat paid,.at:tau � son charged with violation of an or- U. treasury notes City Council Member A is a dinance of his employing commun- months preceding Ju member of XYZ law firm. The Corn- ity);Opinion 179 (A.lawyer-member of was:82144:; mittee has been asked whether other a municipal board of zoning appeals, members of the;firm can ethically and his or her law partners and em- Rates previously certified were: represent clients before that city's ployees, may not represent a client's hnarcls. commissions, or other music- interest in proceedings before that January 1, 1988 . . . . 8.39% ipal hudies. Tlie committee has a:so hoard.) been asked whether ethical problems Additionally, there is the concern July 1, 1987. . . . . . . . .7.5% arc; -:laminated if the city council that where the individual pursuing member is disqualified from consider- relief before the city council or subor- January 1, 1987 . . . . 6.66% ing any matter in which another dinate body feels aggrieved by the member of the law firm appears. governmental decision, there is the MICHIGAN BAR JOURNAL O=BER. 1988 1019 I " �{C S_/ ��3 11/27/89 CITY OF LANSING AFFIDAVIT OF DISCLOSURE OF CONFLICT OF INTEREST TO: [X] CITY CLERK or [x] CITY ATTORNEY and [X] MAYOR and , DEPARTMENT HEAD or [x] CITY COUNCIL PRESIDENT (Name) Mark H. Canady being duly sworn, says under oath: 1. I am an elected or appointed officer or employee of the City of Lansing, holding the position of (Title) City Councilman in the Department. This position is: [ ] Fulltime [ Parttime ( less than 25 hours/wk) [ ] Unpaid. 2. [ I , [ ] and/or my (Relationship) a member of my immediate family as defined in Ordinance 290. 02 ( i) , M and/or (Name) Howard and Howard Attorneys, P.C. a business with which I am associated as defined in Ordinance 290 . 02 (b) , (c) and (d) : (Select the option or options that apply) [ ] a. may receive a financial benefit of more than a de minimus nature which is distinguishable from the benefits to the person as a member of the public or as a member of a broad segment of the public from a decision I would otherwise make or.-participate in as an officer or employee. The decision involved is described as follows: The financial benefit will be received by the following persons in the following amounts: ;and/or [ ] b. intend to have business dealings with the City of 1 REFERRED TO THE BOARD OF ETHICS 11/27/89 Lansing, either directly or indirectly. The business dealings are specifically described in detail as follows ( include names of each party, the duration of the dealings, the financial consideration between the parties , the governmental facilities or services involved, the nature and degree of assignment of government employees for fulfillment of dealings, and the nature of any pecuniary interest ) : ;and/or [ ] c. may derive income or benefits , either directly or indirectly, in addition to official remuneration, as a result of Council action. The action involved is described as follows: The income or benefits , in addition to official remuneration, that will be derived, either directly or indirectly, is described as follows : ;and/or [ ] d. may derive income or benefits, either directly or indirectly, in addition to official remuneration, as a result of a contract with the City. The contract is specifically described in detail as follows (include names of each party, the duration of the dealings, the financial consideration between the parties , the governmental facilities or services involved, the nature and degree of assignment of government employees for fulfillment of the contract, and the nature of any pecuniary interest) : 2 11/27/89 ;and/or [X] e. have a conflict between a personal interest and the public interest as defined by state law, the Lansing City Charter, or ordinance. The personal interest that conflicts with the public interest is described as follows: I am an attorney for Joel Ferguson and am duty bound to represent his best interests to the finest legal -extent The public interest that the personal interest conflicts with is described as follows : As a Councilmember, I have fiduciary duty to h City to represent its interests to the fullest extent of the law. My two duties conflict on the issue of selling the Civic Arena. 3. I have attached additional detail on the reverse of this form or on attached sheets, including copies of all relevant documents, memos, resolutions, and contracts. 4. (Select One) [x] I will not make or participate in the making of the affected decision and/or governmental decisions concerning the contract and/or governmental decisions concerning the business dealings and/or governmental decisions concerning the conflict, OR [ ] Despite the conflict of interest, I am able to make or participate in the making of the affected decision and/or governmental decisions concerning the contract and/or governmental decisions concerning the business dealings and/or governmental decisions concerning the conflict, fairly, objectively, and in the public interest because: 3 11/27/89 5. I hereby certify that this disclosure is complete and accurate to the best of my knowledge, information and belief. 6. I hereby certify that I have not solicited or entered into any agreement with the City of Lansing prior to filing this affidavit. The foregoing Affidavit of Disclosure of Conflict of Interest was executed on the loth day of October 1990 Subscribed and sworn before me the day of , 19 in County, Michigan Notary Public/or Deputy Clerk County, Michigan My Commission Expires: FOR CITY CLERK/CITY ATTORNEY USAGE DATE FILED: COPIES SENT TO: [ ] Mayor [ ] City Council President [ ] Department Head [ ] Board of Ethics DATE SENT: BY: 4 CITY OF LANSING AFFIDAVIT OF DISCLOSURE OF CONFLICTS OF INTEREST (Adopted 2/27/89 ) NOTICE THIS FORM IS AUTHORIZED FOR USE FOR ALL DISCLOSURES OF CONFLICTS OF INTEREST. IT REPLACES THE ONE PAGE FORM PREVIOUSLY DISTRIBUTED BY THE CITY CLERK ' S OFFICE. THE INFORMATION SUPPLIED IN THIS FORM MUST BE GIVEN UNDER OATH. THERE MAY BE EMPLOYMENT, CIVIL AND/OR CRIMINAL SANCTIONS IMPOSED UPON ANYONE MAKING A FALSE OR MISLEADING _OATH OR STATEMENT ON THIS FORM. INSTRUCTIONS FOR COMPLETING AFFIDAVIT 1. Question 1 asks for identifying information. 2 . Question 2 asks for details of the conflict of interest. Choose the alternative or alternatives that describe your situation, and complete only the applicable section( s ) completely. Incomplete information will delay review of your filing by the Board of Ethics. 3 . Questions 3 to 6 apply in all cases. 4 . The completed form should be dated and executed, and your signature notarized. 5. Disclosures of financial conflicts of interest should be filed with the City Clerk. Disclosures of nonfinancial conflicts of interest should be filed with the City Attorney. 6 . After filing, your form will be reviewed by the Board of Ethics for completeness and conformity to state law, the charter, and any applicable ordinances . You will. be advised if any additional information or if further action is required. Generally, the review will occur within 2-4 weeks of your filing. If speedier review is required, please indicate the date your review is needed by and your reasons for the request, in a separate letter filed with your affidavit. NINE COMMONLY ASKED QUESTIONS ABOUT DISCLOSING CONFLICTS OF INTEREST 1, why do I have to fill out this form? Both state law and local charter provisions require timely, i --- full and complete disclosure, in writing, of actual and potential conflicts of interest. These provisions have been in effect since the mid and late 1970s . 2. When is an officer or employee required to file an Affidavit of Disclosure? As soon as a conflict exists, an officer or employee must promptly file an Affidavit of Disclosure with the City Clerk or the City Attorney, but in no event less than 10 days before any meeting of any governing body at which the matter will be discussed or considered. Where an officer or employee serves on a governing body responsible for approval of the matter in which there is a conflict, the disclosure must be made at the same time as the filing with the City Clerk, to the governing body (the Council President, in the case of Councilmembers) and be included in the public record of the proceedings. Last minute disclosures, except in an unusual circumstances, do not comply with state law or the Charter. However, in the event the issue unavoidably arises for the first time at a particular meeting, the governing body may determine by vote of an affirmative majority of disinterested members if a conflict exists which requires or permits a member to be excused from voting. At the very least, the nature of the conflict and the reasons for excusal or nonexcusal from voting should always appear in the record of the meeting. An Affidavit of Disclosure must then be filed as soon as practible after the meeting. 3. Does a person have to file an Affidavit of Disclosure on each transaction in which they are or may be in conflict, or may the Affidavit be generic in nature? An officer or employee must file an Affidavit of Disclosure on each separate transaction that involves a financial conflict. 4. What level of detail satisfies the requirement to fully disclose a conflict of interest? State law, the Charter and Conflict of Interest Ordinance require complete and specific details in order to satisfy the requirement of a full disclosure. The form is designed so that if fully completed, it will satisfy the disclosure requirement in most cases. 5. Is the purpose of the Affidavit of Disclosure to serve notice that I am unable to speak or vote on a matter, or does it simply serve as notice to other parties in the decision making process ii l that I have a self interest as opposed to a public one? Both. In the appropriate case, it also notifies a governing body (and the public) , on the record, why the officer or employee with the conflict believes he or she can, in light of the conflict, make or participate in making a decision on the matter fairly, objectively, and in the public interest. 6. Is the filing of an Affidavit of Disclosure required even if I have already been excused from voting or participating in the decision of the matter? Yes. 7. What standards of conduct apply if I have a conflict of interest? - When there is a conflict of interest relative to a public contract, state law sets the standards of conduct which apply. Officers and employees who contemplate being a party to a contract with the City are referred to MCL 15 . 321 et seq. , entitled, "Contracts Of Public Servants With Public Entities" . As a general rule, state law prohibits a full time officer or employee from having direct business dealings with the City. Volunteer and part time officers and employees may, if state law is complied with, have business dealings with the City. Violation of the state statute is a misdemeanor. In all other cases, Chapter 5 of the Charter and Chapter 290 of the Code of Ordinances supply the applicable rules . Copies of the Charter and Ordinance are available from the City Clerk. Any officer or employee may seek an advisory opinion from the Board of Ethics based on the facts of their specific situation, if they are uncertain about what rules apply to them, or about what they are required to do to resolve a conflict of interest. S. Who am I allowed to communicate with about this matter, once I have filed an Affidavit of Disclosure? If you have a conflict of interest, whether or not you have filed an Affidavit of Disclosure, you may not officially or unofficially participate in the discussion or consideration of the item in conflict in any way, shape, or form, either directly or indirectly, either in furtherance of your public responsibilities or of your private interests, at any stage of the consideration of the matter in which you have a conflict, except in compliance with State law or Ordinance 290 . iii 9. Does being excused from voting or late filing of an Affidavit of Disclosure absolve any prior actions I may have taken on behalf of the matter in which I have a conflict of interest? No. iv CITY OF LANSING AFFIDAVIT OF DISCLOSURE OF CONFLICT OF INTEREST TO: [)q CITY CLERK or [� CITY ATTORNEY and [x] MAYOR and DEPARTMENT HEAD or [ J CITY COUNCIL PRESIDENT (Name) Mark H. Canady being duly sworn, says under oath: 1. I am an elected or appointed officer or employee of the City of Lansing, holding the position of (Title) city Councilman in the Department. This position is: [ ] Fulltime Parttime ( less than 25 hours/wk) [ ] Unpaid. 2. [A I , [ ] and/or my (Relationship) ► a member of my immediate family as defined in Ordinance 290. 02 ( i) , M and/or (Name-) Howard and Howard Attorneys, P.C. F a business with which I am associated as defined in Ordinance 290 . 02 (b) , (c) and (d) : (Select the option or options that apply) [ ] a. may receive a financial benefit of more than a de Yninimus nature which is distinguishable from the benefits to the person as a member of the public or as a member of a broad segment of the public from a decision I would otherwise make or participate in as an officer or employee. The decision involved is described as follows: The financial benefit will be received by the following persons in the following amounts: ;and/or b. intend to have business dealings with the City of 1 '•h Lansing, either directly or indirectly. The business dealings are specifically described in detail as follows ( include names of each party, the duration of the dealings, the financial consideration between the parties, the governmental facilities or services involved, the nature and degree of assignment of government employees for fulfillment of dealings, and the nature of any pecuniary interest) : ;and/or [ ] c. may derive income or benefits , either directly or indirectly, in addition to official remuneration, as a result of Council action. The action involved is described as follows: The income or benefits, in addition to official remuneration, that will be derived, either directly or indirectly, is described as follows: ;and/or [ ] d. may derive income or benefits, either directly or indirectly, in addition to official remuneration, as a result ' of a contract with the City. The contract is specifically described in detail as follows (include names of each party, the duration of the dealings, the financial consideration between the parties, the governmental facilities or services involved, the nature and degree of assignment of government employees for fulfillment of the contract, and the nature of any pecuniary interest) : 2 11/27/go ;and/or [x] e. have a conflict between a personal interest and the public interest as defined by state law, the Lansing City Charter, or ordinance. The personal interest that conflicts with the public interest is described as follows : I am an attorney for Joel Ferguson and am duty bound to represent his best interests to the finest legal extent The public interest that the personal interest conflicts with is described as follows: As a Councilmember, I have fiduciary duty to the City to represent its interests to the fullest extent of thelaw. MY two duties conflict on the issue of selling the Civic Arena 3. I have attached additional detail on the reverse of this form or on attached sheets, including copies of all relevant documents, memos, resolutions, and contracts. 4. (Select One) [x] I will not make or participate in the making of the affected decision and/or governmental decisions concerning the contract and/or governmental decisions concerning the business dealings and/or governmental decisions concerning the conflict, OR [ ] Despite the conflict of interest, I am able to make or participate in the making of the affected decision and/or governmental decisions concerning the contract and/or governmental decisions concerning the business dealings and/or governmental decisions concerning the conflict, fairly, objectively, and in the public interest because: 3 5. I hereby certify that this disclosure is complete and accurate to the best of my knowledge, information and belief. 6. I hereby certify that I have not solicited or entered into any agreement with the City of Lansing prior to filing this affidavit. The foregoing Affidavit of Disclosure of Conflict of Interest was executed on the lOth day of October 1990 �1 ��- . • Subscribed and sworn before me the � �� day of �. . 19 a/�' in i7 C7;f"/u.-,,County, Michigan Notary Public/� / Dewy Clerk /h u /-7-� County, Michi an My commission Expires: FOR CITY CLERK/CITY ATTORNEY USAGE DATE FILED: COPIES SENT TO: ( ] Mayor ( ] City Council President [ ] Department Head [ ] Board of Ethics DATE SENT: BY: 4 CITY OF LANSING AFFIDAVIT OF DISCLOSURE OF CONFLICTS OF INTEREST (Adopted 2/27/89 ) NOTICE THIS FORM IS AUTHORIZED FOR USE FOR ALL DISCLOSURES OF CONFLICTS OF INTEREST. IT REPLACES THE ONE PAGE FORM PREVIOUSLY DISTRIBUTED BY THE CITY CLERK' S OFFICE. THE INFORMATION SUPPLIED IN THIS FORM MUST BE GIVEN UNDER OATH. THERE MAY BE EMPLOYMENT, CIVIL AND/OR CRIMINAL SANCTIONS IMPOSED UPON ANYONE MAKING A FALSE OR MISLEADING OATH OR STATEMENT ON THIS FORM. INSTRUCTIONS FOR COMPLETING AFFIDAVIT 1. Question 1 asks for identifying information. 2 . Question 2 asks for details of the conflict of interest. Choose the alternative or alternatives that describe your situation, and complete only the applicable section( s ) completely. Incomplete information will delay review of your filing by the _ Board of Ethics . 3 . Questions 3 to 6 apply in all cases. 4 . The completed form should be dated and executed, and your signature notarized. 5. Disclosures of financial conflicts of interest should be filed with the City Clerk. Disclosures of nonfinancial conflicts of interest should be filed with the City Attorney. 6 . After filing, your form will be reviewed by the Board of Ethics for completeness and conformity to state law, the charter, and any applicable ordinances. You will be advised if any additional information or if further action is required. Generally, the review will occur within 2-4 weeks of your filing. If speedier review is required, please indicate the date your review is needed by and your reasons for the request, in a separate letter filed with your affidavit. NINE COMMONLY ASKED QUESTIONS ABOUT DISCLOSING CONFLICTS OF INTEREST 1. Why do I have to fill out-this- form? ---= Both state law and local charter provisions require timely, i full and complete disclosure, in writing, of actual and potential conflicts of interest. These provisions have been in effect since the mid and late 1970s. 2. When is an officer or employee required to file an Affidavit of Disclosure? As soon as a conflict exists, an officer or employee must promptly file an Affidavit of Disclosure with the City Clerk or the City Attorney, but in no event less than 10 days before any meeting of any governing body at which the matter will be discussed or considered. Where an officer or employee serves on a governing body responsible for approval of the matter in which there is a conflict, the disclosure must be made at the same time as the filing with the City Clerk, to the governing body (the Council President, in the case of Councilmembers ) and be included in the public record of the proceedings. Last minute disclosures , except in an unusual circumstances , do not comply with state law or the Charter. However, in the event the issue unavoidably arises for the first time at a particular meeting, the governing body may determine by vote of an affirmative majority of disinterested members if a conflict exists which requires or permits a member to be excused from voting. At the very least, the nature of the conflict and the reasons for excusal or nonexcusal from voting should always appear in the record of the meeting. An Affidavit of Disclosure must then be filed as soon as practible after the meeting. 3. Does a person have to file an Affidavit of Disclosure on each transaction in which they are or may be in conflict, or may the Affidavit be generic in nature? An officer or employee must file an Affidavit of Disclosure on each separate transaction that involves a financial conflict. 4. What level of detail satisfies the requirement to fully disclose a conflict of interest? State law, the Charter and Conflict of Interest Ordinance require complete and specific details in order to satisfy the requirement of a full disclosure. The form is designed so that if fully completed, it will satisfy the disclosure requirement in most cases. ----- - ---5.-- - Is the-purpose of the Affidavit of--Disclosure-.to. serve-notice___ that I am unable to speak or vote on a matters or does it -simply - serve as notice to other parties in the decision making process ii that I have a self interest as opposed to a public one? Both. In the appropriate case, it also notifies a governing body (and the public) , on the record, why the officer or employee with the conflict believes he or she can, in light of the conflict, make or participate in making a decision on the matter fairly, objectively, and in the public interest. 6 . Is the filing of an Affidavit of Disclosure required even if I have already been excused from voting or participating in the decision of the matter? Yes. 7. What standards of conduct apply if I have a conflict of interest? When there is a conflict of interest relative to a public contract, state law sets the standards of conduct which apply. Officers and employees who contemplate being a party to a contract with the City are referred to MCL 15. 321 et sect. , entitled, "Contracts Of Public Servants With Public Entities" . �As a general rule, state law prohibits a full time officer or employee from having direct business dealings with the City. Volunteer and part time officers and employees may, if state law is complied with, have business dealings with the City. Violation of the state statute is a misdemeanor. In all other cases, Chapter 5 of the Charter and Chapter 290 of the Code of Ordinances supply the applicable rules . Copies of the Charter and Ordinance are available from the City Clerk. Any officer or employee may seek an advisory opinion from the Board of Ethics based on the facts of their specific situation, if they are uncertain about what rules apply to them, or about what they are required to do to resolve a conflict of interest. 8. Who am I allowed to communicate with about this matter, once I have filed an Affidavit of Disclosure? If you have a conflict of interest, whether or not you have filed an Affidavit of Disclosure, you may not officially or unofficially participate in the discussion or consideration of the item in conflict in any way, shape, or form, either directly or indirectly, either in furtherance of your public responsibilities or of your private interests, at any stage of the consideration of the matter in which -you -have a--conf li-ct, except in compliance with - State law or Ordinance 290 . iii 9. Does being excused from voting or late filing of an Affidavit of Disclosure absolve any prior actions I may have taken on behalf of the matter in which I have a conflict of interest? No. iv