DENALI BOROUGH, ALASKA
ORDINANCE NO. 02-06
INTRODUCED BY: Teresa
Chepoda Usibelli
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