DENALI BOROUGH, ALASKA

ORDINANCE NO. 02-06

INTRODUCED BY: Teresa Chepoda Usibelli

 

Version A

 

AN ORDINANCE PROVIDING FOR AN ETHICS COMMISSION AND PROVIDING FOR DISPOSITION OF ALLEGED VIOLATIONS.

 

BE IT ENACTED BY the Denali Borough, Alaska that:

 

 

Section1.      Classification. 

 

            This ordinance is of a general and temporary nature.

 

Section 2.     Description

 

A.                 Creation and Composition.  Until an ethics committee is formally created the Denali Borough Personnel Committee will be used to handle Denali Borough complaints

 

Section 3.     Jurisdiction and Powers.

 

A.                 Jurisdiction.  The commission will have jurisdiction to review and make findings concerning any alleged violation of this chapter by any person subject to these provisions. A complaint must be filed within 180 days of the alleged violation.

 

B.                 Termination of borough officials or employee’s duties.  The termination of a borough official or employee’s duties does not affect the jurisdiction of the commission about alleged violations occurring prior to the termination of the official or employee’s official duties.

 

C.                Powers.  The ethics advisory commission has the following powers only:

 

1.      to establish, amend, and rescind rules and procedures governing its own internal organization and operations in a manner and form consistent with this ordinance,

 

2.      to meet as often as necessary to fulfill its responsibilities,

 

3.      to receive support from the borough staff  as they reasonably request to carry out the duties of the commission,

 

4.      to review, index, maintain on file, and dispose of sworn statements,

 

5.      to make findings of fact as necessary for the disposition of a complaint,

 

6.      to make notifications, extend deadlines, and conduct investigations,

 

7.      to subpoena such witnesses and documents as the commission deems relevant, and such other powers as are specifically granted under this chapter.

 

 

Section 4.     Complaints.

 

A.                 Filing.  Any person or the commission on its own initiative believing there has been a violation of this chapter may file a sworn complaint on a Denali Borough Citizen Complaint Form, under the penalty of perjury, with the Borough Clerk.  The complaint must:

 

1.        identify the person or persons who allegedly committed the violation and/or the subject matter;

 

2.        provide a statement of the facts on which the complaint is based;

 

3.        to the extant possible, identify the ethics provision or provisions allegedly violated; and

 

4.        identify sources of evidence, if any, that the complainant recommends should be considered by the ethics advisory commission.

 

B.                 Confidentiality.  No borough official or employee shall reveal information relating to the filing or processing of a complaint, except as required for the performance of official duties. Ex parte communications by or to members of the commission are prohibited by this chapter. All attorney work product and attorney-client papers and related communication of a complaint are confidential to the extent allowed by law, except that all evidence is public information.

 

C.                Notification.  The Borough Clerk will promptly forward a copy of the complaint to the chair of the commission and to the person charged in the complaint. The person charged shall have the opportunity to submit a sworn statement, together with such other information he or she feels is relevant.

 

D.                False accusations and responses.  The Borough Clerk shall, in writing, advise the person filing the complaint that falsely accusing someone of a violation of this chapter may result in criminal prosecution of anyone who knowingly makes a false accusation. The Borough Clerk shall, in writing, advise the person charged in the complaint that falsely responding to a complaint may result in criminal prosecution of anyone who knowingly makes a false response.

 

E.                 Summary dismissal. 

 

1.        Within thirty (30) days after receipt of the complaint the commission members will make a preliminary finding in an open hearing about whether or not the complaint states a claim under this chapter and is supported by just cause. “Just cause”  means such cause found to exist upon a reasonable inquiry that would induce a reasonably intelligent and prudent person to believe that a person has committed an act or acts constituting an ethical violation under this chapter.

 

2.        If the preliminary finding is that the complaint does not state a claim under this chapter or does not have just cause, based upon the statements and evidence submitted, the complaint must be dismissed. A determination that a complaint be dismissed can only be made upon the affirmative vote of three of the five panel members. Written notice of the dismissal must be sent to both the person who made the complaint and the person about whom the complaint was made. The reason or reasons for dismissal will be identified.

 

3.        The chairperson may participate in discussions and voting on a complaint when it is being considered by the commission as a whole. The commission must always have a minimum of three members.

 

Section 5.     Hearing procedures.

 

A.                 Evidentiary Hearing.  If a complaint is not summarily dismissed, it will be pursued further at an open hearing before the ethics advisory commission. Not less than ten days before the hearing, the commission shall, by certified mail or personal service, give written notice of the hearing to both the person who made the complaint and the person about whom the complaint was made.

 

The notice must state the specific provision or provisions of this chapter alleged in the complaint to have been violated, as determined by the preliminary panel.

 

B.                 Notice of charges.  At the hearing, the ethics advisory commission shall consider whether the facts establish a violation of any provision of this chapter, regardless of which provisions, if any, were identified in the complaint as having been allegedly violated. Before the commission may find that a violation of a particular provision occurred, the person charged in the complaint must have notice that the compliance with that provision is in issue and be given an opportunity to respond. Notice of a violation of a particular provision is conclusively established if:

 

1.        the complaint alleged that the provision was violated; or

 

2.        the ethics advisory commission or its legal counsel provides the person charged in the complaint with written notice of the alleged violation of the provision and with a 10-day period within which to respond in writing to the charge.

 

C.                Ex Parte communications.  It is a violation of this chapter for:

 

1.        the complainant, the person charged in the complaint, or any person acting on their behalf to engage or attempt to engage, directly or indirectly, in any ex parte communication about the subject matter of a complaint with a member of the ethics advisory commission; or

 

2.        a member of the ethics advisory commission to:

 

                                                      a.            knowingly entertain an ex parte communication prohibited by Sub-section (c) (1); or 

 

                                                      b.            knowingly communicate, directly or indirectly, with any person, other than a member of the commission, its staff, or its legal counsel, about any issue of fact or law relating to the complaint.

 

D.                Duty to cooperate.  All borough officials and employees shall cooperate with the ethics advisory commission and shall supply requested testimony or evidence to assist the commission in carrying out its charge. Failure to abide by the obligations imposed by the subsection is a violation of this chapter.

 

Section 6.     Hearing Rules.

 

A.                 Hearing on complaints.  The rules contained in this section apply to hearings of the ethics advisory commission on complaints not summarily dismissed.

 

B.                 General rules.  A determination that a violation of this chapter has occurred can be made only upon an affirmative of at least three-fifths of the commission members present and voting, otherwise the complaint must be dismissed. A finding that a violation occurred must be supported by a preponderance of the evidence. “Preponderance of the evidence “ means that measure or degree of proof that produces in a person’s mind a firm belief or conviction as to the truth of the allegations sought to be established.

 

C.                Procedural rules.  A quorum of three commission members must be present for a hearing. Any member of the commission who is not present at a hearing on a complaint may not participate in any discussion, voting, or disposition regarding the complaint. All witnesses must be sworn, and the members of the ethics advisory commission or its legal counsel shall conduct questioning of witnesses.

 

The commission is not bound by the rules of evidence and may establish time limits and other rules relating to the participation of any person in the hearing, subject to Subsections (d) and (e) of this section.

 

D.                Rights of the person charged.  The person charged in the complaint has the right to attend the hearing, the right to make a statement, the right to present and cross examine witnesses, and the right to be represented by legal counsel or another advisor.

 

Section 7.     Disposition of Complaint.

 

A.                 Written decision.  The ethics advisory commission shall make all reasonable efforts to issue a written decision within 45 days after receipt of a complaint. The commission shall state its findings in the written decision. The written decision must either:

 

1.        dismiss the complaint, with the grounds for dismissal set forth in the decision; or

 

2.        find that there has been a violation of this chapter and identify in the decision the particular provision or provisions violated.

 

B.                 Notification.  Copies of the findings and decision must be forwarded to the complainant, the person charged in the complaint, the borough attorney, and any member of the ethics advisory commission who did not participate in the disposition of the complaint. A copy of the findings and decision must also be forwarded to the borough clerk, who shall make it available to the public as authorized by law.

 

C.                Similar charges barred.  If the complaint is dismissed because the evidence failed to establish a violation of this chapter, the ethics advisory commission shall not entertain any other similar complaint based on substantially the same evidence.

 

Section 8.     Referral of Matter for Appropriate Action and Sanctions.

 

A.                 Referral.  If the ethics advisory commission determines that a violation of this chapter has occurred, it shall deliver a copy of the findings to the complainant, if any, the person named in the complaint, and the borough attorney recommending prosecution or setting forth requirements to be complied with an order that voluntary compliance may be had and final determination obtained.

 

B.                 Sanctions.

 

1.        If the ethics review commission determines that a violation has occurred, it shall proceed directly to determination of the appropriate sanction(s).

 

2.        If the commission determines that a violation has occurred, it may impose or recommend the following sanctions.

 

                                                      a.            A letter of notification shall be the appropriate sanction when the violation is clearly unintentional, or when the official or employee’s conduct complained of was made in reliance on public written opinion of the borough attorney. A letter of notification shall advise the official or employee to whom it is directed of any steps to be taken to avoid future violations. The commission may direct a letter of notification to any official or employee covered by this chapter.

 

                                                      b.            A letter of admonition shall be the appropriate sanction in those cases which the commission finds that the violation is minor and/or may have been unintentional, but calls for a more substantial response than a letter of notification, The commission may admonish any official or employee covered by this chapter.

 

                                                      c.             A reprimand shall be the appropriate sanction when the commission finds that a violation has been committed intentionally or through disregard of this chapter. The commission may reprimand any official or employee covered by this chapter. A reprimand directed to a borough official shall also be sent to the borough assembly. A reprimand directed to an employee shall be sent to the borough Executive Officer and included in said employee’s personnel file.

 

                                                      d.            A recommendation of removal from office or a recommendation of suspension from office, as well as a recommendation for length of suspension, shall be the appropriate sanction when the Commission finds that serious or repeated violation of this chapter has been committed intentionally or through culpable disregard of this chapter by an unsalaried Borough Official.

 

A recommendation of suspension from office for an unsalaried official or for a salaried official appointed by the Mayor and Borough Assembly shall be transmitted to the Borough Assembly. The final authority to carry out such recommendations to remove from office or suspend from office and the length of suspension shall be with the Borough Assembly.

 

A recommendation of suspension of borough employees shall be directed from the Commission to the Borough Executive Officer. In such cases the final authority to carry out such recommendations to suspend from employment and the length of suspension shall be with the Executive Officer.

 

                                                      e.            A letter of censure or a recommendation of recall shall be the appropriate sanction when the Commission finds that serious or repeated violation of this chapter has been committed intentionally or through culpable disregard of this chapter by an elected borough official.

 

A letter of censure or a recommendation of recall directed to an elected official shall be transmitted to the Borough Clerk, published in a local newspaper of the largest general circulation and shall be sent to the Borough Attorney.

 

Section 9.     Legal Counsel.

 

A.                 Borough Attorney’s office.  The borough attorney’s office shall act as the legal council to the ethics advisory commission. Additionally, the borough attorney’s office shall:

 

1.         issue advisory opinions to borough officials and employees about the requirements imposed by this chapter and other ethics laws; and

2.        train and educate all borough officials and employees with respect to their ethical responsibilities.

 

B.                 Outside legal council.  An independent outside attorney, who does not otherwise represent the borough, shall be appointed by the borough attorney, to serve as legal council to the ethics advisory commission for a particular case whenever:

 

1.        a complaint is filed relating to:

 

                                                      a.            an alleged violation of this chapter by a borough assembly member;

 

                                                      b.            an alleged violation of this chapter by a borough employee who is a department director or of a higher rank;

 

2.        the ethics advisory commission requests such an appointment; or

 

3.        the borough attorney requests such an appointment.

 

Section 10.   Opinions issued by the Borough Attorney.

 

A person who reasonably and in good faith acts in accordance with a written advisory opinion issued by the borough attorney may not be found to have violated this chapter by engaging in conduct approved in the advisory opinion if:

 

A.                 the person requested the issuance of the opinion;

 

B.                 the request for an opinion fairly and accurately disclosed all relevant facts;

 

C.                less than one year has elapsed between the date the opinion was issued;

 

D.                the date of the conduct in question; and

 

E.                 the person waives the attorney-client privilege with respect to the written advisory opinion.

 

Section 11.   Annual report.

 

The ethics advisory commission shall prepare and submit an annual report to the borough assembly detailing the activities of the commission during the prior year. The format for the report must be designed to maximize public and private understanding of the commission’s operations.

 

The report may recommend changes to the text or administration of this chapter. The borough clerk shall take reasonable steps to ensure wide dissemination and availability of the annual report of the ethics advisory commission.

 

Section 12.   Penalties and Enforcement, General.

 

The remedies contained in this article are available whenever the ethics advisory commission finds a violation or violations of this chapter.

 

Section 13.   Prosecution for Perjury.

 

Any person who knowingly files a false sworn statement under this chapter is subject to criminal prosecution for perjury under the laws of the State of Alaska.

 

Section 14.   Disqualification from Contracting.

 

A.                 Any person who has been found by the ethics advisory commission to have intentionally or knowingly violated any provision of this chapter may be prohibited by the borough assembly from entering into any contract with the borough for a period of two years.

 

B.                 It is a violation of this chapter:

 

1.       for a person debarred from entering into a contract with the borough to enter or attempt to enter into a contract with the borough during the period of disqualification from contracting; or

 

2.       for a borough official or employee to knowingly assist in a violation of Subsection B1 of this section.

 

C.                Nothing in this section prohibits any person from receiving a borough service or benefit, or from using a borough facility, according to the same terms generally available to the public.

 

D.                A business entity may be disqualified from contracting with the borough based on the conduct of the entity’s employee or agent, if the conduct occurred within the scope of employment or agency with the entity.

 

Section 16.   Borough Attorney Action.

 

If the ethics commission determines that a person has violated this chapter, it shall direct the Borough Attorney or independent counsel to initiate whatever legal action is necessary including but not limited to injunctive relief.

 

Section 17.   Effective Date. 

This ordinance becomes effective upon adoption by the Denali Borough Assembly and signature of the Mayor.

 

Section 18.   Termination.

 

This ordinance shall terminate upon appointment of an ethics commission.

 

 

DATE INTRODUCED:  May 19, 2002

 

FIRST READING:  May 19, 2002

 

PUBLIC HEARING:  _____________

 

 

 

 

PASSED and APPROVED by the DENALI BOROUGH ASSEMBLY on this ____ day  of________ , 2002.

 

 

__________________________

Mayor

 

ATTEST:                               ___________________________

Borough Clerk