Chapter 6.32
CODE OF ETHICS FOR MAYOR AND BOROUGH EMPLOYEES

Sections:

6.32.010    Definitions.

6.32.020    Declaration of policy.

6.32.030    Scope of chapter.

6.32.040    Misuse of official position.

6.32.050    Improper gifts and required disclosures.

6.32.060    Improper use or disclosure of information.

6.32.070    Improper influence in borough grants, contracts, or leases.

6.32.080    Outside employment restricted.

6.32.090    Aiding a violation prohibited.

6.32.100    Declaration of a potential violation or conflict.

6.32.110    Complaint procedure – Employee.

6.32.120    Complaint procedure – Mayor.

6.32.130    Initial screening.

6.32.140    Hearing officer.

6.32.150    Consequences of violations.

6.32.160    Statute of limitations.

6.32.170    Confidentiality.

6.32.010 Definitions.

In this chapter, unless the context requires otherwise,

Benefit” means anything that is to a person’s advantage or self interest, or from which a person profits, regardless of the financial gain, including any dividend, pension, salary, acquisition, agreement to purchase, transfer of money, deposit, loan or loan guarantee, promise to pay, grant, contract, lease, money, goods, service, privilege, exemption, patronage, advantage, advancement, or anything of value;

Business” includes a corporation, company, firm, partnership, sole proprietorship, trust or foundation, or any other individual or entity carrying on a business, whether operated for profit or nonprofit;

Child” includes a biological child, an adoptive child, and a stepchild;

Compensation” means any money, thing of value, or economic benefit conferred on or received by a person in return for services rendered or to be rendered by the person for another;

Employee” means a permanent, probationary, seasonal, temporary, or casual employee, whether appointed, executive/administrative/professional, or classified, and does not include the borough mayor, borough clerk, deputy borough clerk or assemblymembers;

Financial interest” means:

1. An interest held by the borough mayor or an employee, or an immediate family member, which includes an involvement or ownership of an interest in a business, including a property ownership, or a professional or private relationship, that is a source of income, or from which, or as a result of which, a person has received or expects to receive a financial benefit;

2. Holding a position in a business, such as an officer, director, trustee, partner, employee, or the like, or holding a position of management;

Gain” includes actual or anticipated gain, benefit, profit, or compensation;

Immediate family member” means:

1. Spouse;

2. A regular member of the person’s household;

3. Child (step, biological or adoptive);

4. Parent (step, biological or adoptive), sibling or grandparent; and

5. Father-in-law or mother-in-law;

Official action” means a recommendation, decision, approval, disapproval, or other similar action, including inaction;

Organization” includes a group, association, society, political party, or other entity made up of two or more persons, whether operated for profit or nonprofit;

Parent” includes a biological parent, an adoptive parent, and a stepparent;

Person” includes a natural person, a business, and an organization;

Personal interest” means an interest held or involvement by the borough mayor or employee, or his immediate family member or parent, including membership, in any organization, whether fraternal, nonprofit, for profit, charitable, or political, from which, or as a result of which, a person or organization receives a benefit;

Source of income” means an entity for which service is performed for compensation or which is otherwise the origin of payment; if the person whose income is being reported is employed by another, the employer is the source of income; if the person is self-employed by means of a sole proprietorship, partnership, professional corporation, or a corporation in which the person, the person’s spouse or child, or a combination of them, holds a controlling interest in, the “source” is the client or customer of the proprietorship, partnership, or corporation; if the entity which is the origin of payment is not the same as the client or customer for whom the service is performed, both are considered the source;

Substantial financial interest” means an interest that will result in immediate financial gain or financial gain which will occur in the reasonably foreseeable future. (Ord. 2016-40 § 39, 2016; Ord. 2006-80 § 2, 2007; Ord. 2002-08 § 2, 2002. 2004 Code § 2.25.200.)

6.32.020 Declaration of policy.

It is declared that:

A. High moral and ethical standards among the borough mayor and borough employees are essential to assure the trust, respect, and confidence of the people of this borough;

B. A code of ethics for the guidance of the borough mayor and borough employees will:

1. Discourage the borough mayor and borough employees from acting upon personal or financial interests in the performance of their public responsibilities;

2. Improve standards of public service; and

3. Promote and strengthen the faith and confidence of the people of this borough in public officials and employees;

C. Holding public office or employment is a public trust and that as one safeguard of that trust, the people require the borough mayor and borough employees to adhere to a code of ethics;

D. A fair and open government requires that the borough mayor and borough employees conduct the public’s business in a manner that preserves the integrity of the governmental process and avoids conflicts of interest;

E. In order for the rules governing conduct to be respected both during and after leaving public service, the code of ethics must be administered fairly without bias or favoritism;

F. No code of conduct, however comprehensive, can anticipate all situations in which violations may occur nor can it prescribe behaviors that are appropriate to every situation; in addition, laws and regulations regarding ethical responsibilities cannot legislate morality, eradicate corruption, or eliminate bad judgment; and

G. Compliance with a code of ethics is an individual responsibility; thus all who serve the borough have a solemn responsibility to avoid improper conduct and prevent improper behavior by colleagues and subordinates. (Ord. 2002-08 § 2, 2002. 2004 Code § 2.25.010.)

6.32.030 Scope of chapter.

A. The assembly reaffirms that the borough mayor holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust. In addition, the assembly finds that, so long as it does not interfere with the full and faithful discharge of the mayor’s public duties and responsibilities, this chapter does not prevent the mayor from following other independent pursuits. The assembly further recognizes that:

1. In a representative democracy, the representatives are drawn from society and, therefore, cannot and should not be without personal and financial interests in the decisions and policies of government;

2. People who serve as borough mayor retain their rights to interests of a personal or financial nature; and

3. Standards of ethical conduct for the mayor need to distinguish between those minor and inconsequential conflicts that are unavoidable in a free society, and those conflicts of interests that are substantial and material.

B. Unethical conduct is prohibited, but there is no substantial impropriety if, as to a specific matter, the mayor’s:

1. Personal or financial interest in the matter is insignificant, or of a type that is possessed generally by the public or a large class of persons to which the mayor belongs; or

2. Action or influence would have insignificant or conjectural effect on the matter. (Ord. 2002-08 § 2, 2002. 2004 Code § 2.25.110.)

6.32.040 Misuse of official position.

A. The mayor or a borough employee may not use, or attempt to use, his or her official position for personal gain, and may not intentionally secure or grant unwarranted benefits or treatment for any person.

B. The mayor or a borough employee may not:

1. Seek other employment or contracts through the use or attempted use of official position;

2. Accept, receive, or solicit compensation for the performance of official duties or responsibilities from a person other than the borough;

3. Use borough time, property, equipment, or other facilities to benefit personal or financial interests;

4. Participate in an official action in which the mayor or employee has a substantial financial interest;

5. Attempt to benefit a personal or financial interest through coercion of a subordinate or require a borough employee to perform services for the private benefit of the mayor or an employee at any time;

6. Solicit any assessments, contributions or services for any political party from any employee in the borough service during working hours;

7. Use or authorize the use of borough funds, facilities, equipment, services, or another government asset or resource to include borough letterhead or logo with the intent to differentially benefit or harm a candidate or potential candidate for elective office or a political party or group.

C. A borough employee who, during his scheduled work hours, engages in political campaign activities shall take approved leave for the period of campaigning.

D. Nothing in this section shall affect the right of the mayor or an employee to hold membership in and voluntarily, financially and otherwise support a political party or candidate, to vote as he chooses, to express his opinions on all political subjects and candidates, to maintain political neutrality, and to attend political meetings.

E. Nothing in this section prohibits inconsequential use of borough time, property, equipment, or other facilities for personal purposes if the use does not interfere with the performance of official duties and the cost or value related to the use is nominal.

F. Nothing in this section prohibits the use of a borough facility by a political organization if the facility is available to other such organizations on the same terms and conditions. (Ord. 2002-08 § 2, 2002. 2004 Code § 2.25.120.)

6.32.050 Improper gifts and required disclosures.

A. The mayor or a borough employee may not solicit, accept, or receive, directly or indirectly, a gift, whether in the form of money, service, loan, travel, entertainment, hospitality, employment, promise, or in any other form, that is a benefit to his personal or financial interests, under circumstances in which it could reasonably be inferred that the gift is intended to influence the performance of official duties, actions, or judgment or confer a benefit for past performance of official duties, actions or judgment.

B. For purposes of this section an occasional, unsolicited gift of $50.00 or less is presumed not to be given under circumstances in which it could be reasonably inferred that the gift is intended to influence the performance of official duties, actions, or judgment. For purposes of the disclosure requirements of subsections (C) and (D) of this section, “gift” includes a series of gifts from the same donor within a 12-month period.

C. Notice of the receipt by a borough employee of a gift valued at more than $50.00, including the name of the giver and a description of the gift and its approximate value, must be provided to the employee’s department director within 30 days after the date of its receipt:

1. If the employee may take or withhold official action that affects the giver;

2. If the gift is connected to the employee’s governmental status; or

3. If reasonable doubt exists as to whether the gift is intended to influence the performance of official duties, actions, or judgment.

D. Notice of the receipt by the mayor of a gift valued at more than $50.00, including the name of the giver and a description of the gift and its approximate value, must be provided to the clerk’s office for inclusion in the public record, within 30 days after the date of its receipt:

1. If the mayor may take or withhold official action that affects the giver;

2. If the gift is connected to the mayor’s governmental status; or

3. If reasonable doubt exists as to whether the gift is intended to influence the performance of official duties, actions, or judgment.

E. The restrictions relating to gifts imposed by this section do not apply to a campaign contribution to a candidate for elective office if the contribution complies with laws and regulations governing elections and campaign disclosure.

F. An employee or the mayor who knows or reasonably ought to know that a family member has received a gift because of the family member’s connection with the employee’s borough employment shall report the receipt of the gift by the family member to the employee’s director if the gift would have to be reported under this section if it had been received by the employee or if receipt of the gift by the employee would be prohibited under this section. (Ord. 2009-21 § 3, 2009; Ord. 2002-08 § 2, 2002. 2004 Code § 2.25.130.)

6.32.060 Improper use or disclosure of information.

A. A current or former borough mayor or employee may not disclose or use information gained in the course of, or by reason of, his official duties that could in any way result in the receipt of any benefit for the mayor or employee or an immediate family member, if the information has not also been disseminated to the public.

B. A current or former mayor or employee may not disclose or use, without appropriate authorization, information acquired in the course of official duties that is confidential by law. (Ord. 2002-08 § 2, 2002. 2004 Code § 2.25.140.)

6.32.070 Improper influence in borough grants, contracts, or leases.

A. The borough mayor or an employee, or an immediate family member, may not attempt to acquire, receive, apply for, be a party to, or have a personal or financial interest in a borough grant, contract, or lease if he takes or withholds official action that affects the award, execution, or administration of the grant, contract, or lease.

B. To the extent this section applies to borough employees, the mayor may formally waive this section after determining that it is in the best interest of the borough to do so. Any waiver of this section shall be in writing and shall set forth the reasons for the waiver. The waiver shall be forwarded to the presiding officer, to be confirmed by the assembly. (Ord. 2002-35 § 2, 2002; Ord. 2002-08 § 2, 2002. 2004 Code § 2.25.150.)

6.32.080 Outside employment restricted.

A. A borough employee may not render services to benefit a personal or financial interest or engage in or accept outside employment, if the outside employment or service is incompatible or in conflict with the proper discharge of official duties.

B. A borough employee rendering outside services for compensation, or engaging in outside employment, shall report to the director of the employee’s department as soon as possible and in no event later than January 1st of the year after which the outside services or employment began. Any change in an employee’s outside service or employment activity must be reported to the director as soon as reasonably possible after it occurs. (Ord. 2003-07 § 2, 2003; Ord. 2002-08 § 2, 2002. 2004 Code § 2.25.170.)

6.32.090 Aiding a violation prohibited.

It is a violation of this chapter for the borough mayor or an employee to knowingly aid another person in a violation of this chapter. (Ord. 2002-08 § 2, 2002. 2004 Code § 2.25.190.)

6.32.100 Declaration of a potential violation or conflict.

A. The mayor or an employee who is or may become involved in a matter that may result in a violation of a section in this chapter shall:

1. Refrain from taking any official action relating to the matter until a determination is made under this section; and

2. If an employee, immediately make a full and complete disclosure, in writing, to the director of the employee’s department; or

3. If the mayor, immediately make a full and complete disclosure, in writing, to the borough attorney.

B. The director shall make a written determination whether an employee’s involvement would be a violation of this chapter and shall provide a copy of the written determination to the employee and to the borough attorney. The director shall review the summaries of previous determinations as set forth in subsection (E) of this section and may request guidance from the borough attorney before making the written determination.

C. The borough attorney shall make a written determination whether the mayor’s involvement would be a violation of this chapter and shall provide a copy of the written determination to the mayor.

D. An employee or the mayor is not liable under this chapter for any action carried out in accordance with a determination made pursuant to this section if the employee or mayor fully disclosed all known relevant facts reasonably necessary to the determination.

E. All written determinations shall be confidential and submitted to the borough attorney for review. The borough attorney shall make available for employee or public review a summary of the determinations received under this section, with sufficient deletions to prevent disclosure of the person’s identity. An indexed copy of the summaries shall be maintained by the human resources department for inspection by the public and employees. (Ord 2003-07 § 3, 2003. 2004 Code § 2.25.191.)

6.32.110 Complaint procedure – Employee.

A. Any person may file a complaint under this chapter concerning an employee with the human resources director. The complaint may be filed with the mayor if the human resources director is the subject of the complaint. A complaint shall specify the provisions of this chapter alleged to have been violated and facts alleged to constitute the violation.

B. All complaints under this section shall be in writing and signed and sworn to under oath by the complaining person. Upon request by the complainant, the name of the complainant shall be kept confidential and shall not be revealed unless for good cause shown.

C. Upon receipt of the complaint, the human resources director or mayor shall give the person under investigation notice of the substance of the complaint and an opportunity to present written information or oral testimony including the names of any individuals the person wishes to have interviewed.

D. At the conclusion of an investigation, the human resources director or mayor shall prepare a written report including:

1. A summary of the investigation; and

2. Recommendations for such administrative or legal action as deemed appropriate.

E. The report shall be delivered to the person under investigation, the mayor, and the borough attorney.

F. Action on complaints and investigations shall be completed within 90 days of the filing of the complaint unless good cause is shown for an additional 30-day extension.

G. If an employee is found in violation of this chapter or found to have furnished false or misleading information during the investigation, the employee may be subject to reprimand, demotion, suspension, discharge or otherwise subject to disciplinary action. This section does not prohibit the review of a disciplinary action in the manner prescribed by an applicable collective bargaining agreement or personnel statute or rule.

H. All documents, records, testimony, final determination and disciplinary action relating to the investigation of the complaint are confidential and shall not be released to the public unless required by state law or court order. (Ord. 2016-40 § 40, 2016; Ord. 2003-07 § 4, 2003. 2004 Code § 2.25.193.)

6.32.120 Complaint procedure – Mayor.

A. Any person may file a complaint under this chapter concerning the mayor by filing a written, signed complaint with the borough clerk. A complaint shall specify the provisions of this chapter alleged to have been violated and facts alleged to constitute the violation. Any person may file a complaint.

B. All complaints under this section shall be in writing and signed and sworn to under oath by the complaining person. Upon request by the complainant, the name of the complainant shall be kept confidential and shall not be revealed unless required by state law, court order or for good cause shown as determined by the borough clerk or the hearing officer. (Ord. 2016-40 § 41, 2016; Ord. 2003-07 § 5, 2003. 2004 Code § 2.25.194.)

6.32.130 Initial screening.

A. Upon receipt of a complaint, the borough clerk shall screen the complaint and determine if the complaint is sufficient. If necessary, the borough clerk may consult with or request a legal opinion from the borough attorney as to the sufficiency of the complaint. The borough clerk may dismiss the complaint on any of the following grounds:

1. The complaint does not comply with FNSBC 6.32.120.

2. The complaint does not allege facts sufficient to constitute a violation of this chapter.

3. The borough has no jurisdiction over this matter.

4. The complaint is defective in a manner that would prevent the making of a sound determination.

B. If the complaint is sufficient on its face, then the borough clerk shall make an initial determination as to whether or not there is probable cause for a hearing. Before making a probable cause determination, the borough clerk shall notify both the mayor and the complainant that the complaint has been accepted and serve a copy of the complaint on the mayor. The notice shall also specify that the mayor must file a response to the complaint, which shall include any challenge to the sufficiency of the complaint, within 30 calendar days from the date of the clerk’s written notice. The notice shall also inform the mayor of the right to submit affidavits or other written evidence in support of his or her response. Misrepresentation of a material fact in a response is a violation of this chapter. Failure to timely respond may be considered an admission of the allegations in the complaint. The borough clerk may make her determination as to probable cause for a hearing from the written complaint and written response from the mayor alone or she may also interview individuals and request documents if she deems necessary. If necessary, the borough clerk may consult with or request a legal opinion from the borough attorney as to probable cause for a hearing.

C. If the borough clerk determines that there is probable cause for a hearing, the clerk shall send the complaint to a hearing officer selected by the borough attorney.

D. If the borough clerk determines that the complaint is insufficient, has no legal basis or there is no probable cause for a hearing, the clerk shall make a written determination and shall distribute the determination to the mayor and the complainant. The complainant shall have one opportunity within 10 business days of the date of mailing or hand delivery of the determination to amend the complaint and to re-file. If the clerk determines that the second complaint is insufficient, lacks legal basis or probable cause for a hearing or if the complainant fails to file a corrected complaint within the time set forth above, the clerk’s determination is final and the clerk shall reject any attempts by the complainant or any other person on behalf of the complainant to file a complaint based upon the same or essentially similar facts and circumstances. The complainant may appeal any dismissal by the clerk to the superior court in accordance with the Alaska Rules of Appellate Procedure. (Ord. 2003-07 § 5, 2003). (2004 Code § 2.25.195.)

6.32.140 Hearing officer.

A. If the borough clerk determines the complaint is sufficient and there is probable cause that the mayor may have violated this chapter, then the borough attorney shall select an independent hearing officer to preside over the investigation. The hearing officer shall be a private attorney or an individual trained as an administrative hearing officer. The hearing officer shall not be an employee of the Fairbanks North Star Borough.

B. The hearing officer shall conduct an investigation so as to be completed within 60 days of receipt of the complaint from the borough clerk. The hearing officer can, for good cause shown by any person, including the hearing officer, extend the time limit by 30 days.

C. The hearing officer has the power to:

1. Consider any timely challenge to the sufficiency of the complaint or probable cause determination raised by the mayor and dismiss the complaint if appropriate. If dismissed, both the complainant and mayor shall receive written notice of the dismissal and the reasons for the dismissal;

2. Administer oaths, hold hearings and take testimony;

3. Upon application by a party to the hearing or upon his or her own order, issue subpoenas in the manner prescribed by Rule 45 of the Alaska Rules of Civil Procedure, to require the presence of witnesses and the production of records, books and papers at the hearing;

4. Order testimony to be taken in person or by deposition; and

5. Require any person to submit in writing such reports and answers to questions relevant to the proceedings conducted and the hearing officer may prescribe that such submission be made within a certain period of time, under oath or otherwise.

D. Failure or refusal to obey a subpoena issued under this chapter is punishable as contempt in the manner provided by law and court rule. The superior court may compel obedience to the subpoena in the same manner as prescribed for obedience to a subpoena issued by the court.

E. The hearing officer may convene a prehearing conference for the following:

1. To set a time and place for the hearing;

2. For stipulation as to matters of fact;

3. To simplify issues;

4. To identify and schedule prehearing matters including any pretrial discovery procedure usually available in civil actions; and

5. To resolve other similar matters before the hearing.

F. The complainant or his or her representative or private counsel may participate in the hearing process and may introduce testimony or additional evidence.

G. The mayor may be represented by private counsel of his or her own choosing. The mayor shall have an opportunity to:

1. Challenge the sufficiency of the complaint;

2. Examine all documents and records obtained by the hearing officer or the borough clerk;

3. Bring witnesses;

4. Establish all pertinent facts and circumstances;

5. Question or refute testimony or evidence including the opportunity to confront and cross-examine adverse witnesses; and

6. Exercise, to the extent the hearing officer in his or her discretion determines to be just and reasonable, any pretrial discovery procedure usually available in civil actions.

H. The Alaska Rules of Evidence do not apply to the admission of evidence in a hearing; however, the hearing officer’s findings must be based upon reliable and relevant evidence. All testimony and written evidence taken at the hearing must be preserved. Upon request, a copy of the testimony and written evidence must be furnished to the respondent.

I. After the hearing officer has completed the investigation, the hearing officer shall make a written findings of facts and conclusions of law. The hearing officer may take any action or combination of actions which the hearing officer deems appropriate including, but not limited to, the following:

1. Dismiss the complaint for insufficiency or other grounds;

2. Determine that no violation of this chapter has occurred; or

3. Determine that there are facts sufficient to constitute a violation of the chapter.

J. If the hearing officer finds that the mayor has violated this chapter, the hearing officer shall determine that the mayor be subject to either or both of the following:

1. Public censure;

2. A civil fine of not more than $500.00.

K. The hearing officer’s determination is final and shall be delivered to the mayor and mailed to the complainant within 10 working days of the final decision. An appeal from a decision of the hearing officer may be taken to the superior court in accordance with the Alaska Rules of Appellate Procedure. (Ord. 2003-07 § 5, 2003. 2004 Code § 2.25.196.)

6.32.150 Consequences of violations.

In addition to any disciplinary action, the mayor, or hearing officer if the mayor is the subject of the complaint, shall determine if any or all of the following shall be ordered:

A. Voidance of any grant, contract, lease or other agreement or arrangement entered into in violation of this chapter;

B. Recovery of any fee, compensation, gift or benefit given to an employee or the mayor;

C. Pursuit of any other available legal or equitable remedy; or

D. Pursuit of any possible criminal actions. (Ord. 2003-07 § 6, 2003. 2004 Code § 2.25.197.)

6.32.160 Statute of limitations.

No complaint may be filed against an employee or a mayor which alleges a violation of this chapter which occurred more than two years prior to the filing date of the complaint. (Ord. 2003-07 § 7, 2003. 2004 Code § 2.25.198.)

6.32.170 Confidentiality.

A. Complaints and subsequent investigations relating to the mayor prior to a final determination by the hearing officer that there has been a violation, and complaints and subsequent investigations relating to employees shall be confidential except as necessary to carry out the powers and duties set forth in this chapter or to enable another person or department to consider and act upon the determinations or recommendations of the mayor pursuant to FNSBC 6.32.150 or any other section of this chapter.

B. Any employee who is found to have publicly disclosed any information relating to an investigation or findings under this chapter, unless such disclosure is otherwise permitted under this chapter, shall be subject to discipline up to and including dismissal from employment.

C. Except as set forth in subsections (D) and (E) of this section, any person, whether or not an employee, shall not violate the confidentiality requirements of this chapter. In addition to the disciplinary actions set forth above, a violation of the confidentiality provisions of this chapter shall be a misdemeanor subject to the provisions of Chapter 1.20 FNSBC.

D. Notwithstanding subsections (A) through (C) of this section, the human resources director may publish summary opinions to inform borough personnel and the public about the interpretation of provisions of this chapter relating to an investigation and determination as long as such publication does not divulge any material facts which would lead to the identity of the person who was the subject of the complaint.

E. A person who makes public the substance of or any portion of a confidential investigation or determination of which that person was the subject is deemed to have waived the confidentiality of that determination and of any records obtained or prepared in connection with that determination. (Ord. 2003-07 § 8, 2003. 2004 Code § 2.25.199.)