Chapter 2.120
CONFLICT OF INTEREST
Sections:
2.120.030 Conflict disclosure and disqualification because of personal interest.
2.120.040 Prohibited acts designated.
2.120.050 Disclosure of interest in business entity.
2.120.070 Transactions involving the city.
2.120.080 Accepting or making gifts.
2.120.090 Public contracts – Procurement.
2.120.100 Employment of present and former public servants.
2.120.110 Negotiating employment.
2.120.120 Coercion of business or contributions.
2.120.130 Acquiring interest in a business entity.
2.120.140 Inducement to violate prohibited.
2.120.150 Disclosure clause in contracts.
2.120.160 Waivers – Determination of nonapplicability.
2.120.170 Advisory power of the city attorney.
2.120.200 Voidable transactions.
2.120.210 Violation – Penalty.
2.120.220 Misdemeanor to knowingly file false complaint.
2.120.010 Purpose.
The purpose of this chapter is to prevent improper influence, avoid the appearance of impropriety, and prohibit public officials from receiving unjust financial gain from public service. It also seeks to increase public confidence by assuring that official actions are taken objectively and properly. It is the objective of this chapter to promote these goals by establishing ethical standards of conduct for all officers and employees of the city, including volunteers. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-101.]
2.120.020 Definitions.
For the purposes of this chapter, unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:
“Assist” means to act, offer, or agree to act in such a way as to help, represent, aid, advise, furnish information to, or otherwise provide assistance to a person or business entity, believing that such action is of help, aid, advice or assistance to such person or business entity and done with the intent to so assist such person or business entity.
“Blind trust” means an independently managed trust in which the public servant, beneficiary or volunteer public servant-beneficiary has no management rights and in which the public servant-beneficiary or volunteer public service servant-beneficiary is not given notice of alterations in, or other dispositions of, the property subject to the trust.
“Business entity” means a sole proprietorship, partnership, association, joint venture, corporation, limited liability company, firm, trust, foundation or other organization or entity used in carrying on a business.
“City-regulated business entity” means any business entity for which the city of Riverton issues a license, pursuant to any city ordinance, or which the city regulates.
“Compensation” means anything of economic value, however designated, which is paid, loaned, granted, given, donated or transferred to any person or business entity by anyone other than the city for or in consideration of personal services, materials, property or any other consideration whatsoever, and the term includes any forbearance.
“Corruptly” means done with wrongful intent and for the purpose of obtaining or receiving any personal, financial, or professional benefit resulting from some act or omission by a public servant or volunteer public servant, which is inconsistent with the proper performance of his or her public duties.
“Economic benefit tantamount to a gift” includes: (a) a loan at an interest rate that is substantially lower than the commercial rate then currently prevalent for similar loans; and (b) compensation received for private services rendered at a rate substantially exceeding the fair market value of the services.
“Elected officer” means any person holding the office of mayor or city council member.
“Executive employee” means any person classified as an at-will executive employee by the city.
“Financial interest” means:
(a) A substantial interest;
(b) Holding a position in a business entity, such as an officer, director, trustee, partner, employee, or the like; or
(c) Holding any position of management in a business entity.
“Gift” means any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, an economic benefit tantamount to a gift, or other item having monetary value, unless consideration of equal or greater value is received. The term does not include a parking pass or free parking: (1) for a parking lot, if the parking lot is owned by the city; or (2) for a parking lot which is not owned by the city, when used for official city business. The term includes gifts of services, training, transportation, lodging, and meals, whether or not provided in-kind, by purchase of a ticket, payment in advance, or reimbursement after the expense has been incurred. The term “gift” is subject to the following:
(a) Gifts to Relatives or Others That Are Attributable to Elected Officer or Executive Employee. A gift to a relative of an elected officer or executive employee, or a gift to any other individual based on that individual’s relationship with the elected officer or executive employee, shall be considered a gift to the elected officer or executive employee, if: (i) given with the knowledge and acquiescence of the elected officer or executive employee; and (ii) the elected officer or executive employee knows, or with the exercise of reasonable care should know, that it was given because of the official position of the elected officer or executive employee.
(b) Food or Refreshment Provided to Dependents. If food or refreshment is provided at the same time and place to both a public servant or volunteer public servant and the spouse or dependent thereof, only the food or refreshment provided to the public servant or volunteer public servant shall be treated as a gift for purposes of this chapter.
“Governmental action” means any action on the part of the city, including, but not limited to:
(a) Any decision, determination, finding, ruling or order;
(b) Any grant, payment, award, license, contract, subcontract, transaction, decision, sanction or approval, or the denial thereof, or the failure to act in respect thereto; and
(c) Any legislative, administrative, or discretionary act of any public servant or volunteer public servant.
“Grant of hospitality or gesture of friendship” includes granting of lodging, food and travel expenses, and the granting of gifts and remembrances such as birthday, holiday and anniversary presents, given on the basis of personal friendship.
“Outside employment” means any employment, activity or enterprise for compensation, including self-employment, performed by a public servant apart from his or her official assigned duties and required duty-times for the city.
“Public servant” means any elected officer, any executive employee, or any other person in a position of employment with the city, whether or not such person is compensated for his or her services, but does not include any volunteer public servant.
“Regulated” means being subjected to the city’s regulatory licensing, permitting or approval procedures.
“Relative” means father, mother, husband, wife, son, daughter, sister, brother, mother-in-law, father-in-law, brother-in-law, sister-in-law, uncle, aunt, niece, nephew, grandparent, grandchild, half-brother, half-sister, first cousin, son-in-law, daughter-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother or stepsister.
“Sell” means signing a bid, proposal, or contract; negotiating a contract; contacting any public servant or volunteer public servant for the purpose of obtaining, negotiating or discussing changes in specifications, price, cost allowances or other terms of a contract; settling disputes concerning performance of a contract; or any other liaison activity with a view toward the ultimate consummation of a sale even though the actual contract therefor is subsequently negotiated by another person.
“Substantial interest” means the ownership, either legally or equitably, by a public servant, volunteer public servant, a public servant’s or volunteer public servant’s spouse, or a public servant’s or volunteer public servant’s minor child of at least 10 percent of the outstanding shares of a corporation or a 10 percent interest in any other business entity.
“Transaction” means any deal, contract, agreement, arrangement, undertaking, or other matter, including, without limitation, any permit approval, lease, franchise, sale or purchase.
“Volunteer public servant” means any person serving on a special, regular or full-time committee, commission, authority, agency or board of the city, who is not paid a salary or an hourly wage by the city for his or her services thereon, but includes those who may be paid a flat fee per meeting attended. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-102.]
2.120.030 Conflict disclosure and disqualification because of personal interest.
(1) Disqualifying Personal Interest. Whenever the performance of a public servant’s or volunteer public servant’s official duty shall require any governmental action on any matter involving the public servant’s or volunteer public servant’s financial, professional or personal interests, and it is reasonably foreseeable that the decision will have an individualized material effect on such interest, distinguishable from its effect on the public generally, the public servant or volunteer public servant shall disclose such matter in writing as follows:
(a) In the case of the mayor, to the city council;
(b) In the case of the council members, to the mayor and the city council; and
(c) In all other cases, to the city manager and to the members of the body, if any, of which the public servant or volunteer public servant is a member.
The disclosure shall be made in the manner prescribed in RCC 2.120.050 and shall identify the nature and extent of such interests.
(2) Recusal. The public servant or volunteer public servant shall disqualify and recuse himself or herself from participating in any deliberation on any matter requiring disclosure, as well as from voting on such matter. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-103.]
2.120.040 Prohibited acts designated.
(1) Prohibited Disclosure and Wrongful Use of Position. A public servant or volunteer public servant may not:
(a) Unless otherwise allowed by law, disclose confidential information acquired by reason of the public servant’s or volunteer public servant’s official position or in the course of official duties or use such information in order to: (i) substantially further the public servant’s or volunteer public servant’s personal, financial, or professional interest or the personal, financial, or professional interest of others; or (ii) secure special privileges or exemptions for the public servant or volunteer public servant or others; or
(b) Corruptly use or attempt to use the public servant’s or volunteer public servant’s official position to: (i) further the public servant’s or volunteer public servant’s personal, financial, or professional interest or the personal, financial, or professional interest of others; or (ii) secure special privileges, treatment, or exemptions for the public servant or volunteer public servant or others. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-104.]
2.120.050 Disclosure of interest in business entity.
(1) Disclosure to City. Every public servant or volunteer public servant who is also an officer, director, agent, employer or employee of any business entity or the owner of a substantial interest in any business entity subject to city regulation shall disclose, as hereafter provided, any such position or employment and the nature and value of such position or employment.
(2) Time of Disclosure. Public servants and volunteer public servants shall make such disclosures within 30 days after being appointed or elected or otherwise commencing their employment or public service and again during January of each calendar year, if such public servant’s or volunteer public servant’s position: (a) in the business entity has changed or if the value of such public servant’s or volunteer public servant’s interest in the entity has materially increased since the last disclosure; or (b) was filled prior to the effective date of the ordinance codified in this chapter.
(3) Form and Place of Filing Disclosure. Disclosures shall be made in a sworn written statement in a form prescribed by the city and shall be filed with the city recorder; however, in the case of disclosure by the mayor or a city council member, it shall also be filed with the city council. Unless otherwise provided by the law, the disclosure statements are public records and shall be made available for inspection by members of the city council and the public, upon request.
(4) Value of Interest. Unless otherwise required by law, where the value of an interest is required to be disclosed pursuant to this section, it shall be sufficient to report whether the value is less than $15,000 or greater than $15,000. Notwithstanding the above, this section does not apply to instances where the value of the interest does not exceed $2,000. Life insurance policies and annuities are not included in this disclosure requirement and shall not be considered in determining the value of any such interest. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-105.]
2.120.060 Outside employment.
(1) Incompatible Employment. No public servant or volunteer public servant shall engage in any outside employment, which is inconsistent, incompatible with, in conflict with, or inimical to his or her duties as a public servant or volunteer public servant of the city or with the duties, functions, or responsibilities of the city. Such prohibited outside employment includes, but is not limited to, employment:
(a) Involving the use for private gain or advantage of his or her city working time, city facilities, equipment or supplies, except as permitted under RCC 2.120.160;
(b) Involving the receipt or acceptance by the public servant or volunteer public servant of any compensation from anyone, other than the city, for the performance of an act which the public servant or volunteer public servant would be required or expected to perform in the regular course of his or her city employment or as part of his or her duties as a public servant or volunteer public servant;
(c) Involving the performance of an act which may later be subject, directly or indirectly, to the control, inspection, review, audit, or enforcement of the public servant. If the performance of the act may later be subject, directly or indirectly, to the control, inspection, review, audit, or enforcement by another public servant of the city, such outside employment may only be engaged in after procedures have been adopted by the department to which the public servant is assigned to ensure that all work done by the public servant is subject to direct review by the public servant’s immediate supervisor; or
(d) Involving such time demands as would render such public servant’s performance of public duties demonstrably less efficient.
(2) Applicability. Subsections (1)(c) and (d) of this section shall not apply to volunteer public servants. No part of this section shall apply to part-time employees and seasonal employees of the city. Members of the city council are not part-time employees, but are public servants for purposes of this section.
(3) Disclosure. Before engaging in any outside employment that is permissible under this chapter:
(a) Elected officers shall disclose such outside employment, as provided in RCC 2.120.050;
(b) The city manager shall disclose such outside employment to the mayor and the city council;
(c) Heads of departments of the city shall disclose such outside employment to the city manager; and
(d) All other public servants shall disclose such outside employment to their department head.
Outside employment shall not be denied or prohibited, unless it is in violation of the provisions of subsection (1) of this section. No public servant shall have the power to deny an elected officer his or her right to outside employment, which is not prohibited under subsection (1) of this section.
(4) Department Rules and Regulations. Department heads shall adopt rules and regulations for their department regarding outside employment, including the denial thereof, that clarifies the application of this chapter to the unique operations of that department, if such rules or regulations are consistent with the intent of this chapter and no less stringent.
(5) Advisory Opinion. If a public servant’s outside employment is denied under subsection (4) of this section, the public servant may seek an advisory opinion from the city attorney regarding the matter. The city attorney shall issue such an opinion regarding the request, but the city attorney shall not have the power to overrule the discretionary decision of the person who denied the consent.
(6) Certain Travel, Lodging and Food Expenses and Cash Honoraria Are to Be Considered Outside Employment and Not Gifts. Any payment for travel, food, lodging or entertainment expenses, or reimbursement therefor, or any other compensation or cash honorarium, made to a public servant in connection with a public event, appearance or ceremony unrelated to official city business or not furnished by the sponsor of such public event, appearance or ceremony, shall be considered outside employment under this section, and not a gift under RCC 2.120.080. This subsection shall apply to volunteer public servants, but only to the extent of requiring them to disclose such outside employment to the department head to which each is assigned.
(7) Reports to City Manager. Within 15 working days following each February 1st, May 1st, August 1st and November 1st, each department which has issued a denial of outside employment to a public servant shall file with the city manager copies of all such denials given during the previous yearly quarter. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-106.]
2.120.070 Transactions involving the city.
(1) Disclosure Required. No public servant or volunteer public servant shall receive or agree to receive compensation from anyone other than the city for assisting any person or business entity in any transaction involving the city, unless he or she shall file a sworn written statement giving the information required by this section and disclose in an open meeting to the members of the body, if any, of which he or she is a member. Said disclosure shall be made in writing prior to the discussion on the matter and include the following information:
(a) The name and address of the public servant or volunteer public servant involved;
(b) The name and address of the person or business entity being or to be so assisted, or in which the public servant or volunteer public servant has a substantial interest; and
(c) A brief description of the transaction as to which service is rendered or is to be rendered and of the nature of the service performed or to be performed.
This section shall not be construed to allow actions which are otherwise prohibited by city ordinances or state law.
(2) Time and Location of Disclosure Filing. The statement required to be filed by this section shall be filed within 10 days before the date of any agreement between the public servant or volunteer public servant and the person or business entity to be assisted or the public servant’s or volunteer public servant’s receipt of compensation, whichever time is earlier:
(a) With the city recorder;
(b) With the affected body of which the public servant or volunteer public servant is a member;
(c) In the case of disclosure by the mayor, with the city manager and the city council;
(d) In the case of disclosure by a city council member, with the mayor, the city council and the city manager; and
(e) In the case of the city manager, with the mayor and the city council.
(3) Disclosure Is Public Record. The disclosure statement shall be deemed public information and shall be available for examination by the public. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-107.]
2.120.080 Accepting or making gifts.
(1) In General. No public servant or volunteer public servant shall knowingly receive, accept, take, seek or solicit, directly or indirectly, for himself or herself or another, a gift that the public servant or volunteer public servant knows, or with the exercise of reasonable care should know: (a) would influence the recipient to depart from the faithful and impartial discharge of his or her public duties; or (b) is primarily for the purpose of rewarding the public servant or volunteer public servant for official action taken or not taken.
(2) No Solicitation of Gifts for Personal Matters. Except for gifts described as exceptions in subsection (3) of this section, no public servant shall seek or solicit, or receive, directly or indirectly, any gift for the purpose of addressing or dealing with personal matters or other matters not involving official city business.
(3) Prohibition Exceptions. Except as otherwise provided in this subsection, this section does not prohibit accepting:
(a) Campaign Contributions. A political campaign contribution covered or regulated by Chapter 4 of Title 2, or its successor provisions.
(b) Gifts from Relatives. A bona fide gift from a relative, provided it is not given in exchange for, as consideration for or as a reward for the recipient taking or refraining from taking any official city action, past, present or future.
(c) De Minimus Nonpecuniary Gifts. An occasional nonpecuniary gift having a value of less than $50.00, or any other amount provided in the corresponding provision of the Municipal Officers’ and Employees’ Ethics Act, Title 10, Chapter 3, Part 13, Utah Code Annotated 1953, or any successor provisions. However, a public servant may not receive a de minimus, nonpecuniary gift if acceptance of the same conflicts with Riverton City’s purchasing ordinance.
(d) Determinations of Nonapplicability. Any gift for which a determination of nonapplicability is made pursuant to RCC 2.120.160.
(4) Gifts in Another’s Name Prohibited. No person shall make, for the direct benefit of an elected officer or executive employee, a gift:
(a) In the name of another person;
(b) With another person’s funds in his or her own name; or
(c) Made on behalf of another person.
No elected officer or executive employee shall knowingly receive, accept, take, seek or solicit, directly or indirectly, any such gift for his or her benefit or the benefit of a relative or a business entity in which he or she holds a substantial interest. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-108.]
2.120.090 Public contracts – Procurement.
(1) Conflict of Interest.
(a) Conflict of Interest Generally. No public servant or volunteer public servant shall participate, directly or indirectly, in making, recommending, preparing or performing a discretionary function with respect to any contract involving the city, including without limitation a procurement contract, when the public servant or volunteer public servant has actual knowledge that:
(i) His or her relative has a financial interest pertaining to such contract;
(ii) His or her relative has a financial interest in a business entity, which entity has a financial interest pertaining to such contract; or
(iii) His or her relative is negotiating or has an arrangement concerning future employment by any person or entity involved in or benefiting from such contract.
(b) Financial Interest in a Blind Trust. A public servant or volunteer public servant, or any relative thereof, who holds a financial interest in a blind trust, shall not be deemed to have a conflict of interest with regard to matters pertaining to that financial interest; provided, that written disclosure of the existence of the blind trust has been made consistent with RCC 2.120.050, to the:
(i) City council and city manager, in the case of the mayor;
(ii) Mayor and city manager, in the case of city council members or department heads; or
(iii) City manager and the applicable department head, in the case of any other public servant or volunteer public servant.
(c) Discovery of Actual or Potential Conflict of Interest – Disqualification – Waiver. Upon discovery of an actual or potential conflict of interest, a public servant or volunteer public servant shall promptly file a written statement of disqualification and shall withdraw from further participation in the transaction or matter involved. The public servant or volunteer public servant may, at the same time, apply to the city attorney for an advisory opinion regarding what further participation, if any, he or she may have in the transaction or matter.
(2) Gifts and Payoffs Related to Procurement.
(a) Gifts – Offers of Employment. It shall be illegal for any person to offer, give or agree to give to any present or former public servant or present or former volunteer public servant or for any said public servant or volunteer public servant to solicit, demand, accept, or agree to accept from another person, a gift or offer of employment in connection with:
(i) Any decision, approval, disapproval, recommendation, preparation of any part of a procurement requirement;
(ii) Any purchase request;
(iii) Any action to influence the content of any specification or procurement standard;
(iv) Rendering advice regarding doing business with the city;
(v) Investigating, auditing, or attempting to influence any ruling, determination, claim or controversy pertaining to any city procurement requirement, contract or subcontract; or
(vi) Any solicitation or proposal for doing business with the city.
(b) Payoffs. It shall be illegal for any payment, gift or offer of employment to be made by or on behalf of a subcontractor, under a contract to the prime contractor or a higher tier subcontractor or any person associated therewith, as an inducement for the award of a subcontract or order. This prohibition applies whether a payment, gift or offer is made before or after the award of a city contract or order.
(3) Public Servant or Volunteer Public Servant Disclosure Requirements.
(a) Disclosure of Benefit Received from Contract. Any public servant or volunteer public servant who has received or obtains any benefit from any city contract with a business entity in which the public servant or volunteer public servant has a financial interest shall report such benefit to the:
(i) City council and the city manager, in the case of the mayor;
(ii) Mayor and city manager, in the case of city council members or department heads; or
(iii) City manager and applicable department head, in the case of any other public servant or volunteer public servant.
(b) Time of Disclosure. All required disclosures under this section shall be made within 30 days after the public servant or volunteer public servant has actual or constructive knowledge of a benefit received or to be received.
(c) Blind Trust Exceptions. This subsection shall not apply to a contract with a business entity in which the public servant’s or volunteer public servant’s interest in the business entity has been placed in a disclosed blind trust.
(d) Failure to Disclose Benefit Received. Any public servant or volunteer public servant who knows or should have known of such benefit, and fails to report such benefit, as provided in this subsection or subsection (2) of this section, is in breach of the ethical standards of this chapter.
(e) Disclosure Shall Not Exonerate Legal Violation. Disclosure pursuant to this subsection shall not exonerate any public servant or volunteer public servant from any violation of this chapter or state law.
(4) Prohibition Against Contingent Fees. It shall be illegal for a person to be retained or for any person or entity to hire or retain a person to solicit or secure a city contract upon an agreement or understanding that a commission, percentage, brokerage or contingent fee will be paid if a city contract is awarded, except:
(a) For the hiring or retention of bona fide city employees;
(b) Bona fide commercial agencies retained by the city or its redevelopment agency, for the purpose of securing business or economic development in the city; or
(c) The hiring or engaging of businesses or lawyers to collect debts or obligations owed to the city. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-109.]
2.120.100 Employment of present and former public servants.
(1) Contemporaneous Employment Prohibited. Except as provided in RCC 2.120.160, no public servant or volunteer public servant shall participate directly or indirectly on behalf of the city in the procurement or contracting process, involving a city contract, while such public servant or volunteer public servant is the agent or employee of any other party to such contract or for any other person who has a financial interest in such contract.
(2) Restriction on Former Public Servants Regarding Their Former Duties.
(a) Permanent Disqualification of Former Public Servant Personally Involved in a Particular Matter. No former public servant shall knowingly act as a principal or as an agent for anyone other than the city, in connection with any of the following matters in which the city is a party or has a direct interest, if said public servant participated personally and substantially by rendering a decision, granting an approval or disapproval, or making a material recommendation, rendering advice, investigating or otherwise materially impacting said matter in any investigation, while acting as a public servant:
(i) A judicial or administrative proceeding;
(ii) Contract application;
(iii) Request for a ruling or other determination;
(iv) Contract negotiations;
(v) A claim adjustment; or
(vi) A charge or controversy allegation.
(b) One-Year Representation Restriction Regarding Matters in Which a Former Public Servant Was Officially Responsible. With respect to matters which were within a former public servant’s official responsibility, but in which such servant did not participate personally or substantially, the restrictions set forth in subsection (1) of this section shall apply, but only for a period of one year after cessation of the former public servant’s official responsibility.
(3) Disqualification of Business Entity in Which a Public Servant or Volunteer Public Servant Has a Financial Interest. No business entity in which a public servant or volunteer public servant has a financial interest shall knowingly act as a principal or as an agent for anyone other than the city in connection with any of the following matters in which the city is a party or has a direct interest, if said servant participates personally and substantially through rendering a decision, granting an approval or disapproval, making a material recommendation, rendering advice, investigating or otherwise materially impacting said matter in any:
(a) Judicial or administrative proceeding;
(b) Application;
(c) Request for a ruling or other determination;
(d) Contract;
(e) Claim adjustment; or
(f) Charge or controversy allegation.
(4) Selling to the City after Termination of Employment Prohibited. No former public servant, unless the former public servant’s last annual salary did not exceed $30,000, shall engage in selling or attempting to sell supplies, services, or construction to the city for one year following the date of his or her employment separation date. The foregoing prohibition shall not apply to sales or attempted sales made pursuant to a contract awarded through an open and public bidding process. This subsection is not intended to preclude a former public servant from accepting employment with private industry solely because the former public servant’s new employer is a contractor with the city, nor shall a former public servant be precluded from serving as a consultant to the city. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-110.]
2.120.110 Negotiating employment.
A public servant or volunteer public servant shall not perform his or her official city duties, if that action involves a person or business entity which has a financial interest in such city action, while the public servant or volunteer public servant is negotiating prospective employment with such person or business entity. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-111.]
2.120.120 Coercion of business or contributions.
No public servant or volunteer public servant shall in any manner intimidate or coerce another public servant or volunteer public servant who is subordinate to him or her, to do business with him or her or to make any financial contribution to any cause, charity, or undertaking. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-112.]
2.120.130 Acquiring interest in a business entity.
No public servant or volunteer public servant shall acquire an interest in a business entity at a time when such public servant or volunteer public servant believes or has reason to believe, based on information not available to the general public, that such business entity will be substantially and directly affected by any contract, transaction, zoning decision or other official city action. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-113.]
2.120.140 Inducement to violate prohibited.
No person shall induce or seek to induce any public servant or volunteer public servant to violate any of the provisions of this chapter. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-114.]
2.120.150 Disclosure clause in contracts.
The following clause shall be conspicuously set forth in every contract or bid, proposal, or other offer involving the city, which the city determines will likely exceed $25,000 in value:
REPRESENTATION REGARDING ETHICAL STANDARDS FOR CITY OFFICERS AND EMPLOYEES AND FORMER CITY OFFICERS AND EMPLOYEES
The bidder, offeror, or contractor represents that it has not: (1) provided an illegal gift or payoff to a city officer or employee or former city officer or employee, or his or her relative or business entity; (2) retained any person to solicit or secure this contract upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, other than as exempted in the City’s Conflict of Interest ordinance; or (3) knowingly influenced (and hereby promises that it will not knowingly influence) a city officer or employee or former city officer or employee to breach any of the ethical standards set forth in the City’s Conflict of Interest ordinance, Chapter 2.120 RCC.
[Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-115.]
2.120.160 Waivers – Determination of nonapplicability.
(1) Nongift Matters. Except with respect to the restrictions on gifts in RCC 2.120.080, the city council, in the case of the mayor, individual council members, the city manager and the city attorney; and the city manager, in the case of any other public servants or volunteer public servants, may grant a waiver from the provisions of this chapter upon making a written determination that:
(a) The public servant or volunteer public servant will be able to perform his or her official functions, without actual bias or favoritism;
(b) The granting of a waiver will not be detrimental to the interests of the city; and
(c) The granting of a waiver would not violate other applicable city or state law.
(2) Gifts. A determination of nonapplicability of the restrictions on gifts in RCC 2.120.080 may be given by the city council, in the case of the mayor, individual council members, the city manager or the city attorney; and the city attorney, in the case of any other public servant or volunteer public servant.
A determination of nonapplicability shall be in writing and shall be given only upon a written determination that:
(a) The gift was not and will not be given with the intent to influence official action;
(b) There exists no substantial likelihood that the gift will influence official action; and
(c) A determination of nonapplicability will not be detrimental to the interests of the city.
(3) Public Records. Any such determination of nonapplicability under this section shall include a description of the gift, its estimated value and the reasons justifying its being received, and shall be filed as a public document with the city recorder. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-116.]
2.120.170 Advisory power of the city attorney.
(1) Request for Advisory Opinion. Any public servant or volunteer public servant may request of the city attorney an advisory opinion concerning the application to him or her of the provisions of this chapter. The city attorney shall accept and process these advisory opinion requests in accordance with the procedures set forth in this section.
(2) Advisory Opinion upon City Attorney’s Own Initiative. The city attorney on his or her own authority may render advisory opinions whenever he or she deems it in the public interest.
(3) Time for Decision – Public Review. As soon as practicable, but not later than 30 days after he or she receives a request for an advisory opinion, the city attorney shall render a written opinion to the person who requested it and shall provide a copy of the opinion to the mayor, city council and city manager. All advisory opinions shall be available for public review, but such public disclosure may be in such form and with such deletions as may be necessary to prevent the disclosure of the identity of the persons involved or to protect personal privacy interests.
(4) Justifiable Reliance. Any advisory opinion rendered by the city attorney, until amended or revoked by the city attorney, shall be a defense in any action brought under this chapter and shall be binding on the city in any subsequent proceedings concerning the person who requested the opinion and who acted in good faith reliance upon it, unless material facts were omitted or misstated by the person requesting the opinion. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-117.]
2.120.180 Sanctions.
(1) Persons Who Are Not Public Servants or Volunteer Public Servants. The city may impose any one of the following sanctions and any other allowed by law on any person or entity, including those who are not a public servant or a volunteer public servant, for violations of the provisions in this chapter. These sanctions include:
(a) Written warnings or reprimands;
(b) Termination of contracts, at the city’s option; or
(c) Debarment or suspension from future contracting with the city.
(2) Right of the City to Debar or Suspend. Debarment or suspension of doing business in the future with the city may be imposed by the city for violations of the provisions of this chapter; provided, that such action may not be taken without the concurrence of the city attorney.
(3) Due Process. All procedures under this section shall be in accordance with minimum due process requirements, including, but not limited to, a right to notice and an opportunity for a hearing before the city manager or his or her designee, prior to imposition of any termination, debarment, or suspension from being a contractor or subcontractor for the city.
(4) Recovery of Value Transferred or Received in Breach of Ethical Standards.
(a) General Provisions. The value of anything transferred or received in violation of the provisions of this chapter by a public servant, volunteer public servant or other person or entity may be recovered from both the public servant or volunteer public servant and the other person or entity, through judicial action.
(b) Recovery of Payoffs by the City. Upon a showing that any person or entity made a payoff, including a subcontractor who made a payoff to a prime contractor or a higher tier subcontractor in connection with the award of subcontract or order, the amount of the payoff will be recoverable by the city from the recipient. In addition, that amount may also be recovered from the subcontractor making such payoff. Recovery from one offending party shall not preclude recovery from another offending party.
(c) Legal Remedies, Interest and Attorney Fees. The city shall be entitled to seek any other legal remedy and shall be entitled to recover prejudgment and post judgment interest on all sums due it at the rate of 18 percent interest and collect all costs and reasonable attorney fees incurred both before and after suit or judgment. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-118.]
2.120.190 Employee appeals.
Notwithstanding any other provision of this chapter, a public servant who is found to have violated any of the provisions of this chapter, and has had employment discipline imposed, may have such discipline reviewed in accordance with and as provided by law applicable to said employee, including those for career service and civil service systems, if any. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-119.]
2.120.200 Voidable transactions.
Any contract or transaction which was the subject of governmental action by the city and which involved the violation of a provision of this chapter is voidable, at the option of the city. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-120.]
2.120.210 Violation – Penalty.
In addition to any penalty provided herein or allowed in law, any person who knowingly and intentionally violates the provisions of this chapter is guilty of a class B misdemeanor, and may be dismissed from employment or removed from office, as provided by law. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-121.]
2.120.220 Misdemeanor to knowingly file false complaint.
Any person who files a complaint against a public servant or volunteer public servant pursuant to this chapter, knowing that such complaint is frivolous, malicious, false, or is otherwise without merit, shall be guilty of a class B misdemeanor. [Ord. 08-01 § 1 (Exh. A). Code 1997 § 3-12-122.]