HomeMy WebLinkAboutOrdinance 10-2003 ORDINANCE NO. 10-03
An Ordinance Establishing A Conflicts Of Interest Policy
For The City Of Brookings,South Dakota.
Be It Ordained And Enacted By The Council Of The City Of Brookings, State Of
South Dakota,As Follows:
I.
Section 1. Authority. The City Council hereby adopts this ordinance pursuant to Article VII of
the Brookings City Charter.
Section 2. Purpose and Declaration of Policy. The primary purpose of this Ordinance is to
ensure that the use of public office for private gain is prohibited. Moreover,this ordinance is
intended to ensure that the business of this municipality will be conducted in such a way that no
public official of the municipality will gain a personal or financial advantage as a result of their
position with the City and so that the public trust in municipal officials will be preserved. A
further purpose of this Ordinance is to avoid the appearance of impropriety, whether or not an
actual conflict of interest exists. This Ordinance applies to the mayor and council members, and
to city officers, employees and members of all boards, commissions and committees of the city.
Section 3. Definitions. For the purposes of this ordinance,the following definitions shall apply:
Benefit means anything reasonably regarded as economic gain or economic advance, including
benefit to any other person in whose welfare the beneficiary is interested, but does not include a
contribution or expenditure made and reported in accordance with law.
Business entity means a corporation, partnership, sole proprietorship, firm, enterprise, franchise,
association, organization, self-employed individual, holding company, joint stock company,
receivership,trust, activity, or entity.
City agency means any authority, advisory board, body, commission, committee, department, or
office of the city.
Confidential information means privileged statements or communications, whether expressed or
implied, oral or written, between the city council member, city employees, and their attorneys;
work product of the city attorney, or other attorneys representing the city, its council member,
officers and employees; and city records, documents, and other information not subject to public
disclosure or dissemination by law.
Financial interest means an expectation of receiving a financial benefit. A financial interest of a
person includes any financial interest of a member of that person's immediate family. A person
has a financial interest in an organization in which that person has an ownership interest, or is a
director, officer or employee. A person has a financial interest in a decision if a financial interest
of that person will vary with the outcome of the decision. A financial interest does not include
the following:
(1) A personal or financial interest which is not of the magnitude that would exert an
influence on an average,reasonable person.
(2) A personal or financial interest of a type which is generally possessed by the public or a
large class of persons to which that official or employee belongs.
(3) An action or influence which would have an insignificant or conjectural effect on the
matter in question.
Immediate family means any person related to an officer or employee within the first degree of
consanguinity and includes a spouse, parent, child, grandparent, grandchild, or an individual
claimed by that individual or the spouse as a dependent for federal income tax purposes.
Officer, official, employee, board, committee or commission member are also referred to in this
ordinance as"public official"and "public officers"and include any person elected to, appointed
to, or employed or retained by any public office or public body of the city, whether paid or
unpaid and whether temporary, part-time, or full-time. Accordingly, the mayor, council
members, employees, all board, committee and commission members are officers, employees
and officials of the city.
Conflict of Interest means a direct personal or financial interest of a public official,his or her
spouse, household member,business associate, employer or employee, in the outcome of a
cause,proceeding, application or any other matter pending before the officer or before the public
body in which he or she holds office or is employed. "Conflict of Interest"does not arise in the
case of votes or decisions on matters in which the public official has a personal or financial
interest in the outcome no greater than that of other persons generally affected by the decision,
such as adopting a bylaw or setting a tax rate. In addition, a conflict of interest does not arise if
the personal or financial interest is permitted by law, such as the exceptions to prohibited
contracts set forth in SDCL 6-1-2.
Official act or action means any discretionary legislative, administrative or judicial act
performed by any elected or appointed official, officer or employee while acting on behalf of the
municipality.
Public body means a municipality and its departments,boards,city council, commissions,
committees or other instrumentalities.
Public interest means an interest of the community as a whole, conferred generally upon all
residents of the municipality.
Public officer means any person elected to, appointed to, or employed or retained by, any public
office or public body of the city, whether paid or unpaid and whether temporary, part-time, or
full-time. Accordingly, the mayor, council members, employees, all board, committee and
commission members are officers, employees and officials of the city.
Public official means any person elected to, appointed to, or employed or retained by, any public
office or public body of the city, whether paid or unpaid and whether temporary, part-time, or
full-time. Accordingly, the mayor, council members, employees, all board, committee and
commission members are officers, employees and officials of the city.
Section 4. Disqualification.
A public official shall not participate in any official action if he or she has a conflict of
interest in the matter under consideration. A conflict of interest includes a Conflict of Interest as
defined in Section 3. of this Ordinance and as provided in the following sections of this
Ordinance.
Section 5. Disclosure.
(a) A public official who has reason to believe that he or she has or may have a conflict of
interest shall,prior to participating in any official action on the matter, identify the matter under
consideration,the nature of the potential conflict of interest and why he or she believes that he or
she is able or unable to act in the matter.
(b) The remaining members of the public body of which such public official is a member and
the city manager shall have the authority to inquire of any public official about a possible
conflict of interest and to suggest or recommend that the member recuse him or herself from the
matter. If the member believes that he or she does not have a conflict of interest,the member
shall,prior to participating in the matter, identify the matter under consideration,the nature of
the potential conflict of interest and why he or she believes that he or she is able to act in the
matter.
Section 6. Public Contracts.
(a) No official, officer or employee shall enter into any contract with the City, except as
permitted as follows:
(1) An official, officer or employee may enter into a contract with the City involving one
thousand dollars($1,000.00)or less,provided that the consideration exchanged is fair and just;
(2) An official, officer or employee may enter into a contract with the City involving more than
one thousand dollars but less than the amount for which competitive bidding is required if there
is no other source of supply or services available within the city, and provided that the
consideration exchanged is fair and just, and further provided that the accumulated total of such
contracts paid during any calendar year do not exceed the amount for which competitive bidding
is required;
(3)Any firm, association,corporation or cooperative association may enter into a contract with
the City for which competitive bidding is not required and where other sources of supply and
services are available within the City, and the consideration exchanged is fair and just,unless the
majority of the city council are members or stockholders who collectively have controlling
interest, or any one of the City Council is an officer or manager of any such firm, association,
corporation or cooperative association.
(4) Any firm, association, corporation or cooperative association whose members include a
public official may enter into a contract with the City where competitive bidding procedures are
followed and where more than one such competitive bid is submitted;
(5) Any individual, firm, association, corporation or cooperative may enter into a contract with
the City for professional services even though the individual or any member of the firm,
association, corporation or cooperative is a public official of the City,whether or not other
sources of such services are available within the city,provided the consideration exchanged is
reasonable and just;
(6) An official, officer or employee may enter into a contract with the City for commodities,
materials, supplies,or equipment found in the state price list,at the price there established or
below.
(b) Any official,officer or employee who has or may have a personal interest in any public
contract shall disclose such interest prior to the first of any of the events set forth below:
(1) The solicitation of a contract;
(2) The bidding of a contract; or
(3) The negotiation of a contract; or
(4) The approval by the governing body of a contract.
(c) Any contract entered into in violation of this section may be voided by the City. This section
does not affect the application of any state statute.
Section 7. Acceptance of gifts and other things of value prohibited.
(a) No official, officer or employee shall directly or indirectly solicit any gift, or accept any
gift whether in the form of money, services, loan, travel, entertainment, hospitality, thing or
promise, or any other form, under circumstances in which it could reasonably be inferred that the
gift was intended to influence, or could reasonably be expected to influence the officer or
employee,in the performance of official duties,or was intended as a reward for any official action.
(b) Legitimate political contributions are not gifts under the provisions of this chapter.
(c) It is not a conflict of interest for any official, officer or employee to receive a gift or
gratuity that is an unsolicited item of nominal intrinsic value.
Source: Brookings City Charter, Section 7.01(a)
Section 8. Disclosure of confidential information prohibited. During the period of
employment or service and for two years thereafter, no official, officer or employee, with respect
to any contract, transaction, zoning decision, or other matter which is or may be the subject of an
official act or action of the city shall, without appropriate authorization, disclose confidential
information concerning the property, government, or affairs of the city. In addition, no officer or
employee shall use such information to advance the financial or other private interest of the officer
or employee or others.
Source: Brookings City Charter, Section 7.01(a)
Section 9. Appearances by city officials on behalf of private interests prohibited. No
official, officer or employee, except when acting in an official capacity, shall appear on behalf of
any private person before any city agency. This section shall not apply to any official, officer or
employee who has fully informed the city agency of the officer's private interest in a matter and
the official,officer or employee does not participate in any decision related thereto.
Source: Brookings City Charter, Section 7.01(a)
Section 10. Prohibited conduct after leaving the city.
No present or former official, officer or employee may represent another person for compensation
before the city or any public body thereof while in office or employed for a period of two years
from the date of termination of their office or employment concerning any matter with which such
officer or employee was directly concerned and in which such officer or employee personally
participated during the employment or service by a substantial and material exercise of
administrative discretion either during their holding of office or employment or for a period of two
years thereafter.
Source: Brookings City Charter, Section 7.01(a)
Section 11. Additional Prohibited Activities.
(1) No person shall be appointed to or removed from, or in any way favored or discriminated
against with respect to any city position or appointive city administrative office because of race,
gender, age,handicap,religion, country of origin, or political affiliation.
(2) No person shall willfully make any false statement, certificate,mark, rating, or report in
regard to any test, certification, or appointment under the provisions of the City Charter, or in
any manner commit or attempt to commit any fraud preventing the impartial execution of such
charter provisions.
(3) No person who seeks appointment or promotion with respect to any city position or
appointive city administrative office shall directly or indirectly give,render, or pay any money,
service, or other valuable thing to any person for or in connection with any test, appointment,
proposed appointment or proposed promotion.
(4) No person shall knowingly or willfully solicit or assist in soliciting any assessment,
subscription, or contribution for any political party or political purpose to be used in conjunction
with any city election from any city employee.
(5) No city employee shall,directly or indirectly, contribute money or anything of value to or
render service in behalf of the candidacy of any candidate for nomination for election to any City
office. The expression of private or personal views concerning candidates for political office is
not prohibited hereby. Violation of this section shall be grounds for discharge or other
disciplinary action.
Source: Brookings City Charter, Section 7.02.
Section 12. Clerk's Duties and Procedure for Informal Resolution of Conflict of Interest or
Potential Conflict of Interest by City Manager
After receiving a disclosure of a conflict of interest or potential conflict of interest,the City
Clerk shall:
(1) Maintain a record of such disclosure which shall be open to the public; and
(2) Promptly forward a copy of the disclosure to the city manager; and
(3) Promptly forward a copy of the disclosure to any person named in the disclosure as
having or potentially having a conflict of interest; and
(4) Promptly forward a copy of the disclosure to the City Council and to the City
Attorney.
After receiving a disclosure of a conflict of interest or potential conflict of interest,the
City Manager may attempt to informally resolve the matter before the consideration of the
merits of any matter in which the conflict of interest is involved.
Section 13. Violations.
(a) Violation of this article may be punished under the general penalty provisions of this code.
(b) In addition,the City Manager may,upon the finding of a violation of this ordinance by an
employee, exercise any one or any combination of the following remedies:
(1) Reprimand the employee,either privately or publicly, either orally or in writing.
(2) Impose other discipline,including,but not limited to, suspension,demotion, and
termination of employment.
(3) Refer to the city attorney to prosecute for violation of city ordinance.
(4) Refer to the city attorney to seek civil remedies to enjoin any activity prohibited by this
article.
(c). If the party who is the subject of the complaint is not an employee,the City Council shall have
the exclusive authority to:
(1) Reprimand the public official or officer,either privately or publicly,either orally or in
writing.
(2) Order the suspension or removal from the committee,board or commission as permitted by
law.
(3) Refer to the city attorney to prosecute for violation of city ordinance.
(4) Refer to the city attorney to seek civil remedies to enjoin any activity prohibited by this
article.
(5) Defer taking any formal action by imposing a probationary period up to one year.
Section 14. Severability. If any section of this ordinance is held by a court of competent
jurisdiction to be invalid, such finding shall not invalidate any other part of this ordinance.
Section 15. Effective Date. This ordinance shall become effective 20 days after its publication.
II.
Any or all ordinances in conflict herewith are hereby repealed.
FIRST READING: April 15, 2003
SECOND READING: April 22,2003
PUBLISHED: April 25,2003
CITY OF BROOKINGS, S• TH DAKOTA
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