Chapter 16.44
ETHICS IN PUBLIC CONTRACTING

Sections:

16.44.010    Statement of policy and criminal penalties.

16.44.020    General standards of ethical conduct.

16.44.030    Gratuities and kickbacks.

16.44.040    Prohibition against contingent fees.

16.44.050    Contemporaneous employment prohibited.

16.44.060    Waivers from contemporaneous employment prohibition and other conflicts of interest.

16.44.070    Use of confidential information.

16.44.080    Sanctions.

16.44.090    Recovery of value transferred or received in breach of ethical standards.

16.44.010 Statement of policy and criminal penalties.

Public employment is a public trust. It is the policy of the borough to promote and balance the objective of protecting government integrity and the objective of facilitating the recruitment and retention of personnel needed by the borough. Such policy is implemented by prescribing essential standards of ethical conduct without creating unnecessary obstacles to entering public service. Borough employees must discharge their duties impartially so as to assure fair competitive access to governmental procurement by responsible contractors. Moreover, they should conduct themselves in a manner as to foster public confidence in the integrity of the borough procurement organization. To achieve the purpose of this title it is essential that those doing business with the borough also observe the ethical standards prescribed herein.

To the extent that violations of the ethical standards of conduct set forth in this chapter constitute violations of the Alaska Criminal Code they shall be punishable as provided therein. Such penalties shall be in addition to the civil sanctions set forth in this chapter. Criminal, civil, disciplinary and administrative sanctions against employees or nonemployees which are in existence on the effective date of this chapter shall not be impaired. (Ord. 2002-29 § 41, 2002; Ord. 82-69, 1982. 2004 Code § 16.70.010.)

16.44.020 General standards of ethical conduct.

A. For Employees. Any attempt to realize personal gain through public employment by conduct inconsistent with the proper discharge of the employee’s duties is a breach of a public trust. In addition, it shall be unethical for any employee to fail to meet any other applicable standards set forth in this section or to participate directly or indirectly in a procurement when the employee knows that:

1. The employee or any member of the employee’s immediate family has a financial interest pertaining to the procurement;

2. Any other person, business, or organization with whom the employee or any member of an employee’s immediate family is negotiating or has an arrangement concerning prospective employment is involved in the procurement.

An employee or any member of an employee’s immediate family who holds a financial interest in a disclosed blind trust shall not be deemed to have a conflict of interest with regard to matters pertaining to that financial interest.

B. For Nonemployees. Any effort to influence any borough employee to breach the standards of ethical conduct set forth in this section is a breach of ethical standards. (Ord. 2002-29 § 42, 2002; Ord. 82-69, 1982. 2004 Code § 16.70.020.)

16.44.030 Gratuities and kickbacks.

A. It shall be unethical for any person to offer, give or agree to give any employee or former employee, or for any employee or former employee to solicit, demand, accept or agree to accept from another person, a gratuity or an offer of employment in connection with any decision, approval, disapproval, recommendation, preparation or any part of a program requirement or a purchase request influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in any proceeding or application, request for ruling, determination, claim or controversy, or other particular matter pertaining to any program requirement or a contract or subcontract, or to any solicitation or proposal therefor.

B. It shall be unethical for any payment, gratuity or offer of employment to be made by or on behalf of a subcontractor under a contract to the prime contractor or higher tier subcontractor or any person associated therewith as an inducement for the award of a subcontract or order.

C. The prohibition against gratuities and kickbacks prescribed in this section shall be conspicuously set forth in every contract and solicitation therefor. (Ord. 82-69, 1982. 2004 Code § 16.70.030.)

16.44.040 Prohibition against contingent fees.

It shall be unethical for a person to be retained or to retain a person to solicit or secure a borough contract upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, except for retention of bona fide employees or bona fide established commercial selling agencies for the purpose of securing business. (Ord. 82-69, 1982. 2004 Code § 16.70.040.)

16.44.050 Contemporaneous employment prohibited.

It shall be unethical for any employee who is participating directly or indirectly in the procurement process to become or to be, while such an employee, the employee of any person contracting with the governmental body by whom the employee is employed. (Ord. 82-69, 1982. 2004 Code § 16.70.050.)

16.44.060 Waivers from contemporaneous employment prohibition and other conflicts of interest.

The borough assembly may grant a waiver from the employee conflict of interest provision found in FNSBC 16.44.020 or the contemporaneous employment provision found in FNSBC 16.44.050 upon making a written determination that:

A. The contemporaneous employment or financial interest of the borough employee has been publicly disclosed;

B. The borough employee will be able to perform his or her procurement functions without actual or apparent bias or favoritism; and

C. The award will be in the best interest of the borough. (Ord. 82-69, 1982. 2004 Code § 16.70.060.)

16.44.070 Use of confidential information.

It shall be unethical for any employee or former employee knowingly to use confidential information for actual or anticipated personal gain, or for the actual or anticipated personal gain of any other person. (Ord. 82-69, 1982. 2004 Code § 16.70.070.)

16.44.080 Sanctions.

A. The borough mayor may impose any one or more of the following sanctions on an employee for violations of the ethical standards in this chapter in accordance with borough personnel laws, policies, and collective bargaining agreements:

1. Oral or written warnings or reprimands;

2. Suspension with or without pay for specified periods of time; or

3. Termination of employment.

B. The borough mayor may impose any one or more of the following sanctions on a nonemployee for violations of the ethical standards:

1. Written warnings or reprimands;

2. Termination of contracts;

3. Debarment or suspension as provided in Chapter 16.36 FNSBC. (Ord. 2002-29 § 43, 2002; Ord. 82-69, 1982. 2004 Code § 16.70.080.)

16.44.090 Recovery of value transferred or received in breach of ethical standards.

A. The value of anything transferred or received in breach of the ethical standards of this chapter by an employee or a nonemployee may be recovered from both employee and nonemployee.

B. Upon a showing that a subcontractor made a kickback to a prime contractor or a higher tier subcontractor in connection with the award of a subcontract or order thereunder, it shall be conclusively presumed that the amount thereof was included in the price of the subcontract or order and ultimately borne by the borough and will be recoverable hereunder from the recipient. In addition, that amount may also be recovered from the subcontractor making such kickbacks. Recovery from one offending party shall not preclude recovery from other offending parties. (Ord. 82-69, 1982. 2004 Code § 16.70.090.)