CHAPTER 2.71: CODE OF ETHICS

Section

2.71.005    Definitions

2.71.010    Short title

2.71.020    Purposes and policies of code

2.71.030    Applicability

2.71.040    Board of ethics; created; membership

2.71.050    Board of ethics; reimbursement

2.71.060    Board of ethics; powers and duties

2.71.070    Conflict of interests; prohibited acts

2.71.080    Recusal

2.71.090    Employment of municipal officials

2.71.100    Conflict-of-interest report

2.71.110    Prohibited actions

2.71.120    Request for board opinion

2.71.130    Confidentiality

2.71.140    Filing and initial processing of complaint

2.71.150    Screening

2.71.160    Procedure for notification

2.71.170    Probable cause for hearing

2.71.180    Pre-hearing conference

2.71.190    Hearing procedures

2.71.200    Penalties and other remedies

2.71.210    Time limitation

2.71.220    Protection of public interest

2.71.230    Education and training

2.71.005 DEFINITIONS.

(A)    For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

•    “Appointed officials” includes the manager, clerk, attorney, purchasing officer, finance director, deputies, and persons acting in their behalf.

•    “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.

•    “Board” means the borough ethics board.

•    “Board secretary” means the clerk or the person selected by the clerk to be the secretary to the board.

•    “Borough” means all units of the Matanuska-Susitna Borough unless the context clearly indicates otherwise.

•    “Clear and convincing evidence” means evidence indicating that the thing to be proved is highly probable or reasonably certain. This is a greater burden than preponderance of the evidence, the standard applied in most civil trials, but less than evidence beyond a reasonable doubt, the norm for criminal trials.

•    “Complainant” means a person filing a complaint with the ethics board.

•    “Confidential information” means information obtained in the course of holding public office or employment, which is not available to members of the public and which the official is not authorized to disclose, except to designated individuals or bodies, including written and non-written information.

•    “Designated supervisor” means a municipal official’s designated supervisor, or the person responsible for supervision of that municipal official. The clerk is the designated supervisor for the mayor and the assembly, but only under circumstances delineated in MSB 2.71.070 regarding reporting certain information to a designated supervisor.

•    “Entity” means an organization (such as a business or governmental unit) that has a legal identity apart from its members.

•    “Ex parte” means a communication between a person and the ethics board or an ethics board member regarding a matter pending before the board when other parties are not present. This does not include communications with the ethics board clerk or the borough clerk’s office regarding procedural matters.

•    “Financial interest” means:

(1)    an interest held by a person subject to this code 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 in an amount over $1,000; or

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

•    “Hearing officer” means an officer of the Matanuska-Susitna Borough Office of Administrative Hearings under MSB 2.29.

•    “Immediate family member” means a municipal official’s grandparents, parents, children, grandchildren, siblings, spouse or domestic partner, spouse’s children, spouses of children, or a regular member of the official’s household.

•    “Municipal official” includes the following:

(1)    elected or appointed Matanuska‑Susitna Borough officials;

(2)    Matanuska-Susitna Borough employees;

(3)    all paid or unpaid members of boards, commissions and committees of the Matanuska-Susitna Borough; and

(4)    school board members.

•    “Nepotism” means bestowal of official favors on one’s immediate family members, especially in hiring.

•    “Official action” means a recommendation, decision, approval, disapproval, vote, or other similar action, including inaction, by a municipal official.

•    “Organization” means a group, association, society, political party, or other entity made up of two or more persons, whether operated for profit or nonprofit.

•    “Paid” means a person who receives value for the person’s services unless otherwise exempted from this code.

•    “Parties” means respondent and complainant.

•    “Person” includes a corporation, company, partnership, firm, association, organization, business trust or society, as well as a natural person.

•    “Personal interest” means an interest held or involvement by a municipal official, or the official’s immediate family member, 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.

•    “Probable cause” means evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief that an ethics violation has occurred; more than a bare suspicion but less than evidence that would determine a violation.

•    “Respondent” means the person against whom a complaint is filed with the ethics board.

•    “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, 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 client or customer for whom the service is performed, both are considered the source.

•    “Special consideration, treatment, or advantage” includes:

(1)    any attempt to secure a benefit or any action giving an unfair advantage to another person where a primary motivation for the consideration, treatment, or advantage is improper;

(2)    improper motivation for purposes of this definition is one not related solely to the best interests of the borough, including a person’s:

(a)    friendship or kinship with the municipal official;

(b)    financial association with the municipal official;

(c)    other personal association with the municipal official;

(d)    potential for conferring a future benefit by the municipal official;

(e)    political affiliation;

(f)    political support for the governor, lieutenant governor, or legislators.

(3)    evidence of special consideration, treatment, or advantage includes, but is not limited to, the following situations:

(a)    The municipal official interfered with, took actions not in conformance with, or took actions other than those set out in procedures for the award of a benefit, whether the procedures were established formally or informally, in a manner that favored or had an unequal impact on the person receiving the consideration, treatment, or advantage.

(b)    The person receiving the consideration, treatment, or advantage did not meet the standards set out for the award of a benefit, whether or not those standards were established formally or informally.

(c)    The person receiving the consideration, treatment, or advantage was substantially less qualified than other persons considered for the award of a benefit when compared in light of the formal or informal standards set out for the award of the benefit.

(4)    includes meetings with or other forms of access to a municipal official if:

(a)    the person gaining access to the municipal official has the relationship described in subsections (2)(a) through (b) of this definition; and

(b)    the access allows that person to gain information, make a presentation, or receive other consideration, treatment, or advantage that results in an unfair advantage in applying for a borough contract or job that would normally be procured or filled by a competitive process.

(5)    the burden of proof shifts to the municipal official to show by a preponderance of the evidence that the primary motivation for the consideration, treatment, or advantage was the best interest of the borough if, at hearing, it is shown by clear and convincing evidence both:

(a)    that the person receiving the consideration, treatment, or advantage had the relationship described in subsections (2)(a) through (f) of this definition;

(b)    that one of the circumstances described in subsections (3)(a) through (c) of this definition occurred.

(6)    It is not a justification for the granting or securing of a consideration, treatment, or advantage or benefit that the result of what would otherwise be defined as a special consideration, treatment, or advantage was in the borough’s best interest.

(Ord. 11-022, § 3 (part), 2012)

2.71.010 SHORT TITLE.

This chapter shall be known as the code of ethics.

(Ord. 11-022, § 3 (part), 2012)

2.71.020 PURPOSES AND POLICIES OF CODE.

(A)    The Matanuska-Susitna Borough expects all municipal officials to provide their honest services, with equality, honesty, and transparency to the general public. Honest services includes the right to conscientious, loyal, faithful, and unbiased service, to be performed free of deceit, undue influence, conflict of interest, self-enrichment, self-dealing, concealment, bribery, fraud, and corruption.

(B)    To encourage high moral and ethical standards:

(1)    To establish standards of ethical conduct.

(2)    To promote ethics education for all municipal officials.

(3)    To provide clear guidance to municipal officials of the ethical procedures and standards of the borough:

(a)    to recommend procedures that promote ethical behavior and hold municipal officials responsible and accountable for their behavior;

(b)    to promote borough procedures that protect municipal officials from harassment or retribution should they raise concerns about activities that do not appear to be in line with good government, honest services or other ethical behavior.

(4)    To provide for the consideration of potential ethical problems before they arise.

(5)    To provide for the fair and effective administration and enforcement of this code.

(C)    Scope of code. Any effort to benefit a substantial financial interest through official action is a violation of the public trust. The assembly finds that, so long as it does not interfere with the full and faithful discharge of an official’s public duties and responsibilities, this code does not prevent an official 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 borough government;

(2)    people who serve as municipal officials retain their rights to interests of a personal or financial nature; and

(3)    standards of ethical conduct for municipal officials need to distinguish between those minor and insubstantial conflicts that are unavoidable in a free society, and those conflicts of interests that are substantial and material.

(D)    Unethical conduct. Unethical conduct is prohibited, but there is no substantial impropriety if, as to a specific matter, a municipal official’s:

(1)    financial interest in the matter is insubstantial, or of a type that is possessed generally by the public or a large class of persons to which the municipal officer belongs; or

(2)    action or influence would have insubstantial or conjectural effect on the matter.

(3)    A financial interest over $1,000 is presumed substantial under this chapter. A lesser amount is presumed insubstantial.

(Ord. 11-022, § 3 (part), 2012)

2.71.030 APPLICABILITY.

(A)    The code of ethics shall apply to all municipal officials and shall apply to former municipal officials to the extent that the conduct involved occurred during the term of service of the former municipal official.

(B)    MSB 2.71.190 shall apply to all persons subject to a subpoena or order issued by the board of ethics in connection with an official proceeding before the board.

(Ord. 11-022, § 3 (part), 2012)

2.71.040 BOARD OF ETHICS; CREATED; MEMBERSHIP.

(A)    There is created a board of ethics with a total membership of five persons designated by seats numbered one through five. All members shall be residents of the Matanuska-Susitna Borough in accordance with MSB 4.05.040. For any matter to be set for pre-hearing conference under MSB 2.71.180 to come before the board for a full hearing under MSB 2.71.190 or for any matter involving an advisory opinion, the board will be called.

(B)    A paid municipal official may not be a board member.

(C)    The chair of the board shall be a hearing officer from the Matanuska-Susitna Borough Office of Administrative Hearings.

(D)    The chair shall rule on all matters and make all determinations through screening and probable cause. If the matter continues, the chair rules on all procedural matters, presides over the hearing under MSB 2.71.190, makes all rulings thereunder and rules on evidentiary matters. The chair may attend, assist and participate in discussions regarding the final order after a hearing under MSB 2.71.190 or the final opinion on an advisory matter, but shall not vote on such final orders or opinions.

(E)    Members called for a pre-hearing conference under MSB 2.71.180 to come before the board for a full hearing under MSB 2.71.190 may not participate in probable cause or screening and do not vote on matters of conduct of the hearing, procedure, admissibility of evidence, etc. Members called for a hearing or advisory opinion vote on the final opinion only.

(F)    A quorum shall be three voting members of the board called for a purpose; however, no action may be taken without the presence of the chair.

(G)    Any member of the board who has conflicting interests, including being a complainant, in any matter under active investigation may not participate in the matter.

(H)    If any board member misses three consecutive meetings for any reason, the member automatically forfeits his seat and the clerk shall report the vacancy to the assembly.

(I)    In the event a quorum cannot be met due to disqualification or recusal of members, the case documentation and information shall be considered solely by a hearing officer from the office of administrative hearings for action according to the procedures as set forth in this chapter.

(Ord. 17-133, § 2, 2017; Ord. 11-022, § 3 (part), 2012)

2.71.050 BOARD OF ETHICS; REIMBURSEMENT.

(A)    Board members shall be reimbursed for mileage incurred in connection with meetings of the board in the same manner as borough employees are reimbursed for mileage expenses upon presentation of supporting documentation satisfactory to the borough clerk. Reimbursement to the ethics board members is not a form of compensation for the purposes of this chapter.

(Ord. 11-022, § 3 (part), 2012)

2.71.060 BOARD OF ETHICS; POWERS AND DUTIES.

(A)    The duties of the board shall be as follows:

(1)    to prescribe and promulgate rules and regulations governing its own internal organization and procedures in a manner consistent with this code;

(2)    to conduct hearings, recommend disciplinary action, assess penalties, and make referrals;

(3)    to prepare an annual report and recommend changes to this code;

(4)    to investigate complaints alleging violation of the standards in this code of ethics;

(5)    upon the written request of any municipal official, to issue its advisory opinion, in writing, as to any questions;

(6)    to make recommendations to the assembly for amendments to this code of ethics and for other legislation affecting the subject matter of this code of ethics as the board may deem necessary or desirable;

(7)    to provide a continuing program of education, assistance and information about this code to persons to whom it applies;

(8)    to timely process complaints concerning acts subject to the code;

(9)    to create and revise policies and procedures as necessary to transact business under this chapter.

(Ord. 11-022, § 3 (part), 2012)

2.71.070 CONFLICT OF INTERESTS; PROHIBITED ACTS.

(A)    Misuse of official position.

(1)    A municipal official may not grant, obtain, or receive directly or indirectly, any special consideration, treatment, or advantage, for themselves or others, beyond what is generally available to borough residents.

(2)    A municipal official may not, among other things:

(a)    seek other employment or contracts through the use or attempted use of official position;

(b)    accept, receive, or solicit compensation for the performance of official duties or responsibilities from a person other than the borough;

(c)    use borough time, property, equipment or other facilities to benefit substantial financial interests;

(d)    take or withhold official action in order to affect a matter in which the municipal official has a substantial financial interest; or

(e)    attempt to benefit a personal or financial interest through coercion of another municipal official covered by the code.

(f)    No municipal official in his or her official capacity or using their title may publicly promote products or services. However, this does not prohibit a municipal official from answering inquiries by other governmental officials, consumer organizations, or product information services.

(B)    Nepotism.

(1)    Nepotism is prohibited.

(C)    Receiving improper gifts.

(1)    A municipal official or a member of the official’s immediate family may not solicit, accept, or receive, directly or indirectly, a gift in any form, that is a substantial financial interest to the officer 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 constitute a benefit for past performance of official duties, actions, or judgment. Going away parties, parting gifts, social activities, and other events of this type are exempt.

(2)    A municipal official subject to this code shall notify the official’s designated supervisor of a gift with a value in excess of $150, including the name of the giver and a description of the gift and its approximate value, within 30 days after the date of its receipt, if the municipal official may take or withhold (or took or withheld) official action that affects the giver.

(3)    Municipal officials may request guidance from the board concerning whether acceptance of a particular gift is prohibited.

(4)    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.

(5)    Gifts that are not connected with the recipient’s status as a municipal official are outside the scope of this chapter and no disclosure is required.

(D)    Improper influence in borough grants, contracts, leases, or loans includes the following:

(1)    A municipal official or the official’s immediate family members may not attempt to acquire, receive, apply for, be a party to, or have a personal or financial interest in a borough grant, contract, lease, or loan if the municipal official may take or withhold official action that affects the award, execution, or administration of the borough grant, contract, lease, or loan.

(2)    The prohibition in subsection (C)(1) of this section does not apply to a borough grant, contract or lease that is competitively solicited unless the municipal official:

(a)    is employed by the administrative unit awarding the grant, contract or lease, or is employed by the administrative unit for which the grant, contract, or lease is let; or

(b)    takes official action with respect to the award, execution, or administration of the grant, contract, or lease.

(3)    A municipal official shall report in writing to the official’s designated supervisor a personal or financial interest held by the official or the official’s immediate family members, in a borough or school district contract, lease or loan that is awarded, executed or administered by the department that the official serves. The supervisor shall immediately send a copy of this written report to the clerk to be appended to the municipal official’s financial disclosure conflict of interests report.

(E)    A board, commission, committee, or assembly member may not appear on behalf of a private or public interest before any borough body of which the municipal official is a member.

(F)    A municipal official may not represent a private or public interest in any action or proceeding against the interest of the borough to which the borough is a party; provided, that this section shall not apply to:

(1)    any member of the assembly or a municipal official appearing before governmental agencies in behalf of or as a representative of constituents in the course of official duties; or

(2)    performing public or civic obligations without additional compensation; or

(3)    any municipal official appearing on the official’s own behalf; or

(4)    board, commission, committee, or an assembly member representing a client in front of a borough body of which they are not a member.

(G)    A municipal official may not render services to benefit a personal or financial interest, or engage in or accept employment outside the public employer the official serves, if the outside employment or service is incompatible with, or in conflict with, or impairs the official’s independence of judgment or action, the proper discharge of the official’s official duties, except as set forth in MSB 2.71.020(C)(1) and (2) and subsections (D)(1) through (3) of this section.

(H)    A municipal official may not take an active part in political campaigns during duty hours or on borough premises.

(I)    A municipal official must notify the manager, in writing, when an immediate family member is applying for a position with the borough.

(J)    Improper use or disclosure of information includes the following:

(1)    A municipal official or a former municipal official may not disclose any confidential information obtained formally or informally as part of his or her work for the borough or due to his or her position with the borough, or use any such confidential information to further his or her own or any other person or entity’s personal or financial gain. “Confidential information” means information obtained in the course of holding public office or employment, which is not available to members of the public and which the official is not authorized to disclose, except to designated individuals or bodies, including written and non-written information. When such information is also available through channels open to the public, officials are not prohibited from disclosing the availability of those channels.

(2)    A current or former municipal official may not disclose or use confidential information acquired in the course of official duties.

(K)    Release of confidential information is a violation of the ethics code.

(Ord. 11-022, § 3 (part), 2012)

2.71.080 RECUSAL.

(A)    A municipal official shall recuse himself from acting on any matter or proceeding coming before a borough-elected body, board, commission, or committee of which the official is a member when the matter or proceeding involves any person who is, or has been, a client of the official or the official’s firm or partnership within the 12-month period immediately preceding the date of the action.

(Ord. 11-022, § 3 (part), 2012)

2.71.090 EMPLOYMENT OF MUNICIPAL OFFICIALS.

(A)    An elected official of the borough shall not be eligible for employment with the borough while serving as an elected official or within one year after leaving office.

(B)    Except for salary, benefits, and expense reimbursement applicable to each elected official in the course of performing their duties of elected office, an elected official of the borough, an entity employing an elected official, or an entity in which the elected official exercises any control, management, or operational decision making authority shall not be eligible to be employed, represent, advise, or assist the borough for compensation in any manner, or have any interest in a contract to provide services or supplies to the borough while the elected official is in office or within one year after leaving office. The borough assembly, in its sole and absolute discretion, may waive application of this section in advance of any bid, response, or offer being placed.

(C)    A school board member shall not be eligible for employment with the borough or school district while serving as an elected school board member or within one year after leaving office.

(D)    A municipal official who leaves borough service may not, for one year after leaving borough service, represent, advise or assist a person for compensation regarding the following:

(1)    a matter that was under consideration by the department served by that municipal official; or

(2)    a matter in which the official participated personally and substantially through the exercise of official action. For the purposes of this subsection, “matter” includes a case, proceeding, application, contract or determination, but does not include the proposal or consideration of legislative measures; or the proposal, consideration or adoption of administrative regulations or code.

(3)    This restriction on employment or re-employment after leaving municipal service does not prohibit the municipality from contracting with a former municipal official to provide service on a matter on behalf of the municipality.

(4)    The assembly may waive application of this restriction upon determination that a proposed action by a former municipal official is not adverse to the public interest. The waiver shall be by formal action and a copy shall be provided to the board of ethics.

(E)    A municipal official other than an elected official who leaves borough service may not, for one year after leaving borough service, represent, advise, or assist the borough for compensation in any manner unless the borough assembly, in its sole and absolute discretion, approves the compensation. This section does not apply where the official is re-hired, elected, or appointed into a position within the borough.

(Ord. 19-088, § 2, 2019: Ord. 11-022, § 3 (part), 2012)

2.71.100 CONFLICT-OF-INTEREST REPORT.

(A)    A conflict-of-interest report shall be filed under oath once each year by all elected officials, manager, clerk, attorney, department heads, all paid members of boards or commissions, and all municipal officials authorized to obligate the borough to make expenditures, unless a financial disclosure and conflict-of-interest report required by state law is filed with the clerk. An unpaid member of a board or commission with a personal or financial interest, or other activity governed by this code, or prohibited by any other provision of law, shall file the financial disclosure and conflict-of-interest report required by this code and shall update it, as necessary, in accordance with subsection (B) of this section.

(B)    The reports shall be filed with the clerk’s office within 30 days after an official comes under jurisdiction of this code. If the information in the report becomes incomplete or inaccurate during the year, the statement shall be corrected within 30 days after the changed circumstances occur.

(C)    A conflict-of-interests report shall contain the following information:

(1)    the name of each person doing business with or receiving benefit from the borough from which a municipal official or member of the official’s immediate family has received a benefit in an amount in excess of $500 during the preceding year if the officer knew of the benefit incurred;

(2)    the names of any corporations, partnerships, firms, associations or enterprises (including sole proprietorships) doing business with, or receiving benefit from the borough in which the municipal official or the official’s spouse has a direct financial interest in excess of $1,500; provided, that policies of insurance and amounts on deposit in accounts in banks, savings and loan associations or credit unions shall not be considered to be a financial interest within the meaning of this paragraph;

(3)    the names of any corporations, partnerships, firms, associations, or enterprises doing business with the borough, both profit and nonprofit, in which the municipal official or immediate family member holds a position of official or member of board of directors, and the title of each position held; and

(4)    sources of income in excess of $5,000 for all elected officials and municipal officials authorized to execute contracts, make purchases or award grants.

(D)    In addition to disclosure required by MSB code or state law, all municipal officials filing a conflict-of-interest report with the clerk as required under this section shall simultaneously file a supplement to the report on a form prescribed by the borough clerk. The supplement shall contain a list of all civil and criminal judgments entered against the official within ten years of the date of the report to include the case name, nature of action, year of judgment, and a brief description of the judgment entered and/or sentence imposed.

(Ord. 14-168, § 2, 2014; Ord. 11-022, § 3 (part), 2012)

2.71.110 PROHIBITED ACTIONS.

(A)    It is unlawful:

(1)    for any municipal official to willfully fail or refuse to file a written statement required by this code, or to knowingly make any false statement of a material fact in any written statement so filed;

(2)    for any person to intentionally file an ethics complaint they know to be false, against any municipal official;

(3)    for any person to fail or refuse, to appear before the board of ethics pursuant to an order of the board;

(4)    for any person to refuse to be sworn or to affirm or to answer any material or proper question;

(5)    for any person to fail to produce, upon reasonable notice, any material or proper documents, papers, books, accounts, letters, or records in the person’s possession or under the person’s control;

(6)    for any person having been duly sworn to fail to tell the truth by knowingly giving false testimony as to any material matter; or

(7)    to violate any provision of this code.

(Ord. 11-022, § 3 (part), 2012)

2.71.120 REQUEST FOR BOARD OPINION.

(A)    Municipal officials are encouraged to request an opinion from the board relating to any situation which may give rise to the possibility of a conflict of interest under this code. Requests shall be in writing, shall set forth the pertinent facts, be signed by the municipal official making the request and, if requested by the municipal official, be held in confidence by the board.

(B)    The mayor and assembly members may request an opinion from the borough attorney relating to any situation which may give rise to the possibility of conflict of interest or other violation under this code. The mayor or assembly member may also request the opinion be held in confidence.

(C)    An advisory opinion rendered by the board of ethics, or borough attorney, until and unless amended or revoked, is binding upon the ethics board in any subsequent proceeding concerning the person or entity that requested the opinion and acted in good faith, unless he, she or it omitted or misstated a material fact to the board of ethics or borough attorney.

(D)    The ethics board or borough attorney may amend or revoke an advisory opinion including a showing that material facts were omitted or misstated in the request for the opinion. The municipal official who requested the opinion shall be notified of any proceedings regarding modification of said opinion.

(E)    Notwithstanding all other provisions of the Matanuska-Susitna Borough Code, it is not a violation of the code, and the board has no jurisdiction to hear any complaint alleging an elected official should not have voted or participated in an issue before the borough assembly where an elected official discloses a potential conflict of interest and the following procedure (or substantially similar) is followed:

(1)    the mayor or an assembly member may declare a potential conflict and shall declare a substantial financial interest the member has in an official action and may ask to be excused from participating and voting on the matter;

(2)    the mayor shall rule on a request by an assembly member to be excused;

(3)    the deputy mayor shall rule on a request by the mayor to be excused;

(4)    the decision on a request to be excused may be overridden by four affirmative votes of the assembly, except that the member to whom the ruling applies shall not vote on the question.

(Ord. 11-022, § 3 (part), 2012)

2.71.130 CONFIDENTIALITY.

(A)    The filing of a complaint and information regarding an investigation conducted under this code, or obtained by the hearing officer during the investigation, will take place under a confidential process. Confidentiality shall be maintained by the complainant, the respondent, the hearing officer, the board, the clerk, and all contacted municipal officials during the:

(1)    filing of a complaint;

(2)    screening of a complaint; and

(3)    process of determining probable cause.

(B)    All third parties contacted who are not municipal officials shall be asked to maintain confidentiality.

(C)    All portions of board meetings held solely to make a decision are confidential and are held in closed adjudicatory session.

(D)    It is not a violation of this section for a person to contact an attorney or to participate in a criminal investigation.

(E)    The respondent may, in writing, waive the confidentiality protection of this section as to the complaint, the response and associated documentation.

(F)    Prior to a determination of probable cause, if confidential provisions of this chapter are violated by anyone other than the respondent, the complaint shall be dismissed with prejudice.

(Ord. 11-022, § 3 (part), 2012)

2.71.140 FILING AND INITIAL PROCESSING OF COMPLAINT.

(A)    Any person or entity may file a complaint regarding the conduct of a current or former municipal official.

(B)    A complaint shall:

(1)    be alleged in writing on a form provided by the clerk’s office;

(2)    shall clearly state allegations of ethics violations under MSB code; and

(3)    shall be signed and affirmed by the complainant.

(C)    A complaint alleging a violation of this code shall be filed within one year of the violation.

(D)    Procedures.

(1)    When the complaint is filed in the clerk’s office, the clerk shall:

(a)    date, notarize, number, and log the complaint;

(b)    send a copy of the complaint and attached documents to the respondent.

(2)    The clerk shall contact the next available hearing officer for appointment as chairperson, who shall review the complaint and may request public background material associated with the complaint. The request for all information and the response shall be kept confidential.

(3)    The clerk shall prepare a confidential file available only to the hearing officer and the respondent, which contains a copy of the complaint and associated documentation.

(Ord. 11-022, § 3 (part), 2012)

2.71.150 SCREENING.

(A)    Standard of review. The hearing officer shall review each complaint filed to determine whether it is:

(1)    properly completed;

(2)    clear and understandable; and

(3)    contains allegations, which if true could constitute conduct in violation of this code.

(B)    The hearing officer shall screen the complaint in closed adjudicatory session. The request for all information and the response shall be kept confidential.

(C)    After the screening, the hearing officer shall, by formal order:

(1)    accept the complaint in whole or in part; or

(2)    reject the complaint in its entirety.

(D)    In addition, after the screening, the hearing officer shall by formal order:

(1)    refer allegations of violations of municipal, state, or federal law outside the board’s authority to the proper authority for appropriate disposition; and

(2)    refer a complaint outside the jurisdiction of this code to the manager if the complaint alleges a violation of the personnel rules or other matters.

(Ord. 11-022, § 3 (part), 2012)

2.71.160 PROCEDURE FOR NOTIFICATION.

(A)    Rejection. If the complaint is rejected, the clerk shall notify the complainant and respondent of the hearing officer’s rejection of the complaint, including a copy of the complaint, within ten calendar days of its decision.

(B)    Acceptance. If the hearing officer accepts a complaint, in part or in whole, the clerk shall notify the complainant and respondent of the acceptance of the complaint. The hearing officer shall request the respondent to provide full and fair disclosure, in writing, of all facts and circumstances pertaining to the alleged violation(s). Misrepresentation of material facts in a response to the hearing officer is a violation of this code. The respondent shall provide a response within 20 calendar days after service. An additional time period of ten to 20 days may be granted in writing by the hearing officer. At the conclusion of the prescribed time, the hearing officer may continue its investigations or immediately proceed to determining probable cause.

(C)    Reception of information. Within 20 days of receiving the requested information, the clerk shall forward the information to the hearing officer who shall proceed in determining probable cause.

(D)    Lack of response from respondent. If the 20-day limit for response has expired, and no response has been received from the respondent, the clerk shall forward the information to the hearing officer who shall proceed in determining probable cause.

(Ord. 11-022, § 3 (part), 2012)

2.71.170 PROBABLE CAUSE FOR HEARING.

(A)    The hearing officer shall consider all information gathered and determine whether or not there is probable cause to believe that a violation of this code has occurred.

(B)    If probable cause is not found, all parties are notified and the information gathered remains confidential.

(C)    If probable cause is determined by the hearing officer, the documents and all subsequent proceedings, outside of deliberations or closed adjudicatory sessions, are open to the public. Release of such documents shall be subject to restrictions imposed by other provisions of law, if applicable.

(1)    The clerk shall notify all the parties of the decision and schedule a pre-hearing conference within 30 days. Extensions may be requested by the parties.

(Ord. 11-022, § 3 (part), 2012)

2.71.180 PRE-HEARING CONFERENCE.

(A)    All parties shall be notified of the pre-hearing conference.

(B)    The pre-hearing conference may include:

(1)    setting a time and place for the hearing within 45 days of the pre-hearing conference unless extensions are granted;

(2)    stipulation as to matters of fact;

(3)    simplifying issues;

(4)    identifying and scheduling pre-hearing matters;

(5)    setting the briefing schedule and establishing dates for witness lists; and

(6)    resolving other pre-hearing matters before the hearing.

(C)    In the event that a proposed settlement agreement had been reached it may be announced at the pre-hearing conference and a hearing scheduled for the board to consider only the settlement;

(1)    should the board disagree with the party’s settlement agreement, a future hearing date shall be set no sooner than seven business days.

(Ord. 11-022, § 3 (part), 2012)

2.71.190 HEARING PROCEDURES.

(A)    The hearing officer, as the chair of the board, shall preside over the hearing and shall make all rulings on issues of procedure, process, continuances, form and conduct of the hearing and admissibility of evidence, etc. The remainder of the board shall attend the entire hearing, but does not vote on any issue except the final decision.

(B)    The board may administer oaths, hold hearings, and take testimony, issue subpoenas, and consider and accept stipulations or possible settlement agreements.

(C)    The respondent may be represented by counsel, by submitting a notice of appearance to the board. The parties may each have the opportunity to be heard, present evidence, and cross-examine witnesses, who shall testify under oath. Written requests to appear by telephone may be considered by the chair.

(D)    Within ten business days after the conclusion of the last pre-hearing conference, unless good cause is shown and an extension is granted, the parties shall submit witness lists with requests for subpoenas to be issued, if needed. Within five days after receipt of witness list and request for subpoenas, the clerk shall mail or personally serve the parties. Upon request by a party, the chair, on the board’s behalf, may issue subpoenas as follows:

(1)    the parties may summon witnesses and request the production of records, books, and papers by the issuance of subpoenas; and

(2)    subpoenas shall be served as prescribed by Rule 45 of the Alaska Rules of Civil Procedure. Failure of any person to comply with a subpoena or order issued by the board is a violation of borough code. Remedies, enforcement actions and penalties for such violations shall be consistent with the terms of MSB 1.45. Such remedies are not exclusive and the borough may pursue any and all legal and equitable remedies available under law necessary to enforce such subpoenas and orders, including application to superior court.

(E)    The chair may rule on a motion for continuance or extension of deadlines without calling a board meeting as long as there has been an opportunity for the other party to respond to the motion for continuance. The continuance may be granted for good cause. The ruling shall be in writing and shall specify the date to which the deadline has been changed or the time frame which has been extended.

(F)    Any motions that the parties would like the board to consider shall be filed within ten business days after the date of service of the witness lists. Within three business days, the clerk shall serve the motion(s) to all of the parties. An opposition to the motion may be filed within seven business days of the date of service of the motion. Upon receipt of the motions, the chair may determine the need to schedule an additional pre-hearing conference to consider the motion(s), otherwise the board can consider the motions at the hearing.

(G)    Written arguments and exhibits shall be submitted by the date determined at the pre-hearing conference. Written arguments and exhibits submitted shall become part of the record, and shall be mailed or personally served to the board and the parties within seven business days after the written arguments and exhibits are due.

(1)    Any evidence not already part of the record that a party wants the board to consider must be submitted to the clerk’s office before or on the day written arguments are due. Written arguments and exhibits shall not be accepted after the deadline and before the hearing date unless the party requests and is granted leave by the board chair to make a late filing. New evidence may be submitted at the time of hearing if the board chair determines that the evidence was not discovered or could not have been obtained prior to the deadline for evidence submittal, or if the evidence is relevant and it is in the interest of justice that it be considered.

(H)    The hearing shall be subject to the following order:

(1)    introduction of the case;

(2)    opening statement by complainant;

(3)    opening statement by respondent;

(4)    complainant witnesses:

(a)    complainant questions witnesses;

(b)    respondent may cross-examine the complainant’s witnesses;

(c)    board members may ask questions of the complainant’s witnesses;

(5)    respondent’s witnesses:

(a)    respondent questions witnesses;

(b)    complainant may cross-examine the respondent’s witnesses;

(c)    board members may ask questions of the complainant’s witnesses;

(6)    complainant’s closing statement;

(7)    respondent’s closing statement; and

(8)    complainant rebuttal.

(I)    The chair or hearing officer may limit testimony by any person to reduce cumulative or repetitive testimony. The chair or hearing officer may vary the hearing procedures as long as the parties are afforded a fair and reasonable opportunity to be heard.

(J)    Technical rules of evidence do not apply, but the board’s finding shall be based upon reliable and relevant evidence. All testimony and other evidence taken at the hearing shall be recorded and retained according to applicable borough records retention schedules. Upon request, a copy of the recording of the hearing shall be furnished to the parties.

(K)    Decision of the board. The board may deliberate in closed adjudicatory session. A finding of a violation of this code shall be supported by clear and convincing evidence presented at the hearing. The board’s decision shall be in writing, shall state it is a final decision, and shall state the parties have 30 days from the date of distribution to appeal to the Superior Court. The decision shall include findings of fact and conclusions and shall be reasonably specific so as to provide a clear and precise understanding of the reason for the decision.

(L)    The board’s decision shall be filed with the clerk within 30 days after the completion of the hearing and served to the parties by the clerk within 10 days after the board decision has been filed. Final administrative decisions may be appealed to the Superior Court per the Alaska Rules of Appellate Procedure, part 600.

(M)    The chair may attend, assist, and participate in all sessions of the board, but may not vote on the final decision.

(Ord. 11-022, § 3 (part), 2012)

2.71.200 PENALTIES AND OTHER REMEDIES.

(A)    The board, upon a finding of a violation of this code in the case of current or former official, may singly or in combination:

(1)    impose a civil fine of not more than $5,000;

(2)    order divestiture, establishment of a blind trust, restitution or forfeiture;

(3)    order the municipal official to stop engaging in any official action related to the violation;

(4)    recommend that the official’s appointing authority take disciplinary action, including dismissal. In the event the board recommends disciplinary action and the manager or appointing authority disagrees with the recommendation, the manager or appointing authority must provide a written explanation for the manager or appointing authority’s action to the board within ten days of service of the board’s decision.

(B)    If the board determines that a non-salaried member of a board or commission has violated this code, it:

(1)    shall order the member to refrain from voting, deliberating or participating in the matter;

(2)    may order restitution; or

(3)    may recommend to the appropriate appointing authority that the member be removed from the board or commission.

(C)    Notwithstanding other provisions of the borough code, a violation of this code is grounds for removal of a board or commission member for cause. If the ethics board recommends that any board or commission member be removed from office, the board shall forward its recommendation to the mayor and the assembly.

(D)    If the ethics board determines that a former municipal official has violated this code, it shall issue a public statement of its findings, conclusions and recommendations. Additionally, it shall recommend the borough seek all available recommended remedies.

(E)    Disciplinary action for violation shall be as follows:

(1)    The board of ethics, on behalf of the borough, may censure or reprimand any person or entity it finds has violated this code and/or recommend to the appointing authority: demotion, suspension, discharge or other disciplinary actions. Should the responsible municipal official not wish to follow the recommendations of the board, a written explanation shall be provided to the board within 30 days of the board’s final decision.

(F)    Actions taken in violation of this code shall be treated as follows:

(1)    In addition to any other action provided by law, a grant, contract, or lease entered into in violation of this code is voidable by the borough. In determining whether to void a grant, contract or lease, the interest of third parties who could be damaged may be taken into account. The borough may give notice of intent to void a borough grant, contract or lease under this section no later than 30 days after the board’s determination of a violation under this code.

(2)    In addition to any other action provided for by law, a loan issued by the borough received in violation of this code could become immediately payable.

(3)    Any borough action taken in violation of this code is voidable, except that the interest of third parties in the nature of the violation may be taken into account. The borough may pursue any other available legal or equitable remedies.

(4)    The borough may recover any fee, compensation, gift or benefit received by a person as a result of a violation of this code by a current or former municipal official.

(G)    Any municipal official that intentionally violates any provision of this code may be required to pay the borough an additional civil penalty up to twice the amount that any person obtained as a result of the violation. This provision may be imposed in addition to any penalty imposed under subsection (A)(1) of this section.

(H)    A penalty imposed under this section is exclusive of and not instead of any other penalty that may be imposed according to law. To the extent that violations under this code are punishable in a criminal action, that sanction is in addition to the civil remedies in this code.

(I)    Any person or entity that violates any provision of this code is liable in damages to the borough for any losses or increased costs incurred by the borough as a result of the violation.

(J)    A decision of the board is final. An appeal from a decision of the board may be taken within the time prescribed in the State of Alaska Rules of Appellate Procedure by the aggrieved party. Upon request, the clerk shall estimate the cost of preparing the transcript of the public hearing and compile the record on appeal. The appellant shall deposit the estimated costs with the clerk in advance. Upon completion of the record on appeal, the clerk shall refund any excess deposited or charge the appellant for costs exceeding the deposit.

(Ord. 11-022, § 3 (part), 2012)

2.71.210 TIME LIMITATION.

A complaint alleging a violation of this code shall be filed within one year of the violation.

(Ord. 11-022, § 3 (part), 2012)

2.71.220 PROTECTION OF PUBLIC INTEREST.

This code shall be liberally construed in favor of protecting the public interest in full disclosure of conflict of interests and promoting high standards of ethical conduct for borough government. However, the code shall be narrowly construed where it would limit or hinder an elected official’s right and duty to vote or otherwise participate on any issue before the elected body or in performing their duties as local legislators. The provisions of this chapter are not subject to collective bargaining.

(Ord. 11-022, § 3 (part), 2012)

2.71.230 EDUCATION AND TRAINING.

(A)    The borough shall provide training to all persons covered by this code who shall sign an acknowledgement that they have received the training and understand the code; and

(B)    People doing business with the borough, and candidates for borough office shall receive a copy of the ethics code.

(Ord. 11-022, § 3 (part), 2012)