Chapter 2.10
CODE OF ETHICS FOR OFFICERS AND EMPLOYEES

Sections:

2.10.010    Short title.

2.10.020    Applicability.

2.10.030    Construction.

2.10.035    Purpose.

2.10.038    Definitions.

2.10.040    Conflicts of interest – City Council members.

2.10.045    Conflicts of interest – Board and commission members.

2.10.048    Conflicts of interest – Other City officers and employees.

2.10.050    Declaration of intent by officers.

2.10.060    Records of payment to be public record.

2.10.070    Conflict of interest generally.

2.10.080    Filing of statements by City officials.

2.10.090    Repealed.

2.10.095    Repealed.

2.10.100    Repealed.

2.10.110    Repealed.

2.10.111    Complaint and response.

2.10.113    Confidentiality.

2.10.114    Initial screening.

2.10.115    Hearing officer.

2.10.118    Hearing notice.

2.10.120    Advisory opinions.

2.10.121    Service by mail and filing.

2.10.122    Hearing.

2.10.123    Findings of fact and conclusions of law.

2.10.124    Appeal of findings of fact and conclusions of law and penalty.

2.10.130    Prohibited acts.

2.10.140    Failure to provide information.

2.10.150    Cancellation of contracts.

2.10.160    Violations by appointed officers – Penalty.

2.10.170    Violations by elected officials and paid or unpaid members of boards and commissions – Penalty.

2.10.180    Violation – Reprimand and/or dismissal.

2.10.010 Short title.

This chapter shall be known as the “Code of Ethics.” [Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008; Ord. 9-7-82 § 1, 1982. Prior code § 6.10.010. Formerly 2.24.010].

2.10.020 Applicability.

This Code of Ethics shall apply to all elected officials of the City, all employees and appointed officers of the City, and all paid or unpaid members of boards and commissions of the City. [Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008. Prior code § 6.10.020. Formerly 2.24.020].

2.10.030 Construction.

This Code of Ethics shall be liberally construed in favor of protecting the public’s interest in full disclosure of conflicts of interest and promoting ethical standards of conduct for City employees and officials. [Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008. Prior code § 6.10.140. Formerly 2.24.030].

2.10.035 Purpose.

A. The proper functioning of democratic government requires ethical behavior by public officials. Ethics involves the commitment to take individual responsibility in creating a government that has the trust and respect of its citizens. The purpose of this chapter is to set reasonable standards of conduct for City officials and the City Manager so that the public may be assured that its trust in such persons is well placed and that the City officials and the City Manager themselves are aware of the standards of conduct demanded.

B. Whittier is a small community, with a limited number of people interested in serving as community leaders. To this end, it is not the intent of this chapter to set unreasonable barriers that deter aspirants from public service.

C. This chapter also defines conflict of interest, the standards stating when and to whom it applies, and the procedures for declaration and the proper action of the body when possible conflicts arise.

D. This chapter is also intended to establish a process which will ensure that complaints or inquiries regarding the conduct of City officials and the City Manager are resolved in the shortest practicable time in order to protect the rights of the public at large and the rights of the City and the City Manager.

E. The City Council intends this code to be interpreted to promote fair, honest, and impartial dealings with members of the public, to ensure proper use of City resources, and to avoid conflicts of interest.

F. This chapter does not create or prevent a private cause of action against any person, City official, or the City Manager. [Ord. 05-2017(S) § 1, 2017].

2.10.038 Definitions.

As used in this chapter and unless otherwise provided or the context otherwise requires, the following terms shall have the meanings set forth in this section:

“Body of the City” means the City Council and the boards, commissions, committees and task forces appointed by the City Council or the Mayor.

“City Manager” means the person who is hired by the City Council to manage the City of Whittier or the Assistant City Manager when serving as the acting City Manager.

“City official” means a person who holds elective office under the ordinances of the City, or who is a member of a board or commission whose appointment is subject to confirmation by the City Council.

“Financial interest” means:

1. An interest currently held by that person or an immediate family member including:

a. Involvement or ownership in a business; or

b. 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 receives a financial benefit; or

c. An affiliation with an organization in which the person holds a position of management, or is an officer, director, trustee, or employee in the organization.

2. Financial interest does not include:

a. Affiliation as unpaid volunteer with a legally recognized nonprofit organization; or

b. Financial interests of a type which are generally possessed in common with all other citizens or a large class of citizens.

“Gratuity” means a thing having value given voluntarily or beyond lawful obligation.

“Hired consultants and contractors” means a person or organization hired by the City as an independent contractor and not as an employee.

“Immediate family member” means:

1. The spouse of the person;

2. A life partner or person cohabiting with the person; or

3. A child, including a stepchild and an adoptive child, of the person.

“Official action” means a recommendation, decision, approval, disapproval, vote, or other similar action, including inaction (when it is the equivalent of decision to take negative action), made while serving in the capacity of City official or City Manager, whether such action or inaction is administrative, legislative, quasi-judicial, advisory, or otherwise.

“Organization” means any business, corporation, partnership, firm, company, trust, association, or other entity, whether organized for profit or nonprofit.

“Person” means a natural person or an organization.

“Subject of the action” means anything under consideration for official action including but not limited to:

1. Appointments to any office or position of employment;

2. Any contract, project, property, or transaction subject to the action;

3. A platting, vacation or subdivision action;

4. An application for or other consideration of a license, permit, appeal, approval, exception, variance, or other entitlement;

5. A rezoning; and

6. Appeals and quasi-judicial proceedings.

“Substantial financial interest” means a financial interest that would result in a pecuniary gain or loss exceeding $5,000 in a single transaction or more than $10,000 in the aggregate in 12 consecutive months. [Ord. 05-2017(S) § 2, 2017].

2.10.040 Conflicts of interest – City Council members.

A. Immediately after the Council approves the agenda at a regular or special meeting, each Council member shall declare any financial interest in a matter appearing on the agenda. Any Council member or member of the public present at the meeting may question whether another Council member has a financial interest in a matter appearing on the agenda.

B. After a Council member discloses a financial interest or another Council member or member of the public present at the meeting questions another Council member’s financial interest in a matter, the Council shall determine by roll call vote if the Council member has a substantial financial interest in the matter.

C. If the Council determines that a Council member has a substantial financial interest in a matter, the Council member shall not participate in the discussion of the matter or vote on the matter.

D. If the Mayor is ruled to have a substantial financial interest in a matter before the Council, the Mayor shall yield the chair to the vice mayor during the Council discussion or vote on the matter, and shall not vote on or participate in discussion of the matter. [Ord. 05-2017(S) § 3, 2017; Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008; Ord. 9-7-82 § 2, 1982. Formerly 2.24.040].

2.10.045 Conflicts of interest – Board and commission members.

A. Immediately after a City board or commission approves the agenda at a regular or special meeting, each member having a financial interest in a matter appearing on the agenda shall declare the financial interest. Any member may question whether another member has a financial interest in a matter appearing on the agenda and should be excused from discussing and voting on the matter.

B. The presiding officer shall determine if the member alleged to have the financial interest in the matter has a substantial financial interest in the matter. If the presiding officer determines the member has a substantial financial interest in the matter, the presiding officer shall prohibit the member from voting on or participating in any discussion on the matter.

C. Any member of a City board or commission may disclose a financial interest in a matter and choose to excuse himself or herself from voting on and participating in discussion regarding that matter.

D. The decision of the presiding officer on whether a board or commission member should be excused due to a substantial financial interest may be overridden by a majority vote of the board or commission. [Ord. 05-2017(S) § 4, 2017].

2.10.048 Conflicts of interest – Other City officers and employees.

A City officer or employee, other than a Council member or a member of a City board or commission, may not participate in an official action in which the officer or employee has a substantial financial interest. [Ord. 05-2017(S) § 5, 2017].

2.10.050 Declaration of intent by officers.

A person on a Council, a board, commission or committee shall declare any services or goods he or she provides the City or any potential applications he or she intends to submit to the City to provide services or goods to the City in the future. For purposes of this section, “goods and services” means goods or services provided in exchange for financial gain. [Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008; Ord. 9-7-82 § 3, 1982. Formerly 2.24.050].

2.10.060 Records of payment to be public record.

All records of payment received from the City shall be a matter of public record. [Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008; Ord. 9-7-82 § 4, 1982. Formerly 2.24.060].

2.10.070 Conflict of interest generally.

No elected or appointed City officer, official or employee shall intentionally engage in any act in conflict with the performance of his/her official duties and shall disqualify himself/herself from participating in any official action in which he/she has a substantial financial interest. [Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008; Ord. 9-7-82 § 5, 1982. Formerly 2.24.070].

2.10.080 Filing of statements by City officials.

A. City officials and the City Manager must annually file a financial interest disclosure form prepared by the City Clerk and approved by City Council.

B. The financial interest disclosure must be filed by November 1st each year. A newly appointed official must file a statement within 30 days after taking office. Each candidate for elected City office must file a disclosure statement at the time he or she files a declaration of candidacy, except an incumbent seeking reelection with a current disclosure statement on file. Refusal or failure of a candidate to file the required disclosure statement before the end of the time period for filing declarations of candidacy shall require that the candidate’s declaration of candidacy be rejected and the candidate disqualified.

C. The disclosure statement must be true, correct and complete and shall be signed under oath or affirmation, or certified to be true under penalty of perjury.

D. The disclosure statement shall be filed with the City Clerk and shall be open to public inspection and copying at the office of the City Clerk. The disclosure statement will not be sent to the Alaska Public Offices Commission. [Ord. 05-2017(S) § 6, 2017; Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008. Prior code § 6.10.100. Formerly 2.24.080].

2.10.090 Board of Ethics – Created – Membership.

Repealed by Ord. 02-2017. [Ord. 535-08 § 11, 2008; Ord. 475-04 § 2, 2004; Ord. 225-92 § 1, 1992. Prior code § 6.10.030. Formerly 2.24.090].

2.10.095 Appointment.

Repealed by Ord. 02-2017. [Ord. 535-08 § 11, 2008; Ord. 476-04 § 2, 2004. Formerly 2.24.095].

2.10.100 Board of Ethics – Powers and duties.

Repealed by Ord. 02-2017. [Ord. 535-08 § 11, 2008. Prior code § 6.10.040. Formerly 2.24.100].

2.10.110 Board of Ethics – Conduct of hearings.

Repealed by Ord. 02-2017. [Ord. 535-08 § 11, 2008. Prior code § 6.10.050. Formerly 2.24.110].

2.10.111 Complaint and response.

A. Any person may file a complaint with the Clerk alleging that a public official has violated this chapter. The complaint must:

1. Be a written statement of the charge setting out in ordinary and precise language the acts or omissions with which the respondent is charged;

2. Specify the subsection(s) of this chapter that the respondent is alleged to have violated; and

3. Contain a notarized statement of verification providing that the information, statements, and allegations contained in the complaint are true to the best of the person filing the complaint’s knowledge and belief.

B. A complaint alleging a violation must be filed within two years from the date the complainant(s) knew or should have known of the action alleged to be a violation, and no later than five years after the alleged violation occurred.

C. The Clerk shall serve the respondent who is the officer or official against whom the complaint is filed no more than two business days after accepting a complaint as sufficient under WMC 2.10.115.

D. The respondent shall have 30 days to respond to the complaint. The response must:

1. Expressly deny or admit to the specific allegations in the complaint; and

2. Contain a notarized statement of verification providing that the information, statements, and allegations contained in the response are true to the best of the person filing the response’s knowledge and belief. [Ord. 02-2017 § 1, 2017].

2.10.113 Confidentiality.

A. Complaints filed under this chapter are confidential and may not be disclosed to any person except the City Clerk.

B. It is not a violation of this section for a person to contact or retain an attorney or to cooperate in a criminal investigation if one is proceeding.

C. All proceedings and records shall remain confidential unless the respondent requests a public hearing or until the hearing officer files with the Council its findings of fact and conclusions of law concerning the complaint. [Ord. 02-2017 § 1, 2017].

2.10.114 Initial screening.

A. Upon receipt of a complaint regarding a public official, the City Clerk shall screen the complaint and determine if the complaint:

1. States with particularity a violation of this chapter; and

2. The alleged violation occurred within the time period required under this chapter.

B. If the complaint meets the requirements of subsection (A) of this section, the City Clerk shall notify both the public official and the person filing the complaint that the complaint has been accepted and serve a copy of the complaint on the public official.

C. The notice shall also specify that a response by the public official must be filed within 30 calendar days from the date of the Clerk’s written notice. If the deadline falls on a weekend or full-day City holiday, then the notice shall be due on the next business day. The notice shall also inform the public official of the right to submit affidavits or other written evidence in support of the public official’s response. Misrepresentation of a material fact in a response is a violation of this chapter. Failure to timely respond shall be considered an admission of the allegations in the complaint, and the Clerk shall notify the complainant and respondent the allegations of the complaint are deemed admitted.

D. The respondent may appeal to the hearing officer any deemed admission of the allegations of the complaint, for good cause, by filing an appeal with the Clerk within 15 days after the date of notice of the deemed admission. The appeal must state all facts and legal grounds for failure to respond timely.

E. If the City Clerk determines that the complaint is insufficient under this section, the Clerk shall make a written determination indicating the basis for this determination and shall distribute the determination to the public official and the complainant. The Clerk’s determination is final. The complainant may appeal any dismissal by the Clerk to the Superior Court in accordance with the Alaska Rules of Appellate Procedure.

F. If the City Clerk is the subject of the complaint, the complaint should be filed with the City Manager who shall perform the responsibilities of the Clerk under this chapter. [Ord. 02-2017 § 1, 2017].

2.10.115 Hearing officer.

A. If the City Clerk determines the complaint is sufficient, the Clerk shall send the complaint to the hearing officer selected by the City Attorney. The hearing officer shall be a private attorney or an individual trained as an administrative hearing officer. The hearing officer shall not be an employee of the City of Whittier.

B. The Clerk will furnish to the hearing officer the complaint and response, if any, or any appeal.

C. The hearing officer shall schedule a hearing within 90 days after the date of the Clerk’s notice of sufficiency. The hearing officer may extend this deadline for good cause. [Ord. 02-2017 § 1, 2017].

2.10.118 Hearing notice.

A. The Clerk shall serve on the complainant and the respondent a notice of hearing setting out the time and place of hearing and the schedule for any preliminary matters. This notice shall include a statement of the right to provide written evidence and oral testimony. The complainant and the respondent shall also be informed of the right to be represented at the hearing.

B. The hearing officer shall determine if the complainant has proven by the preponderance of the evidence that the allegations in the complaint are true.

C. If the respondent has failed to answer the allegations of the complaint or has admitted the allegations, the hearing officer shall prepare findings of fact and conclusions of law based on the written record. [Ord. 02-2017 § 1, 2017].

2.10.120 Advisory opinions.

Any official or employee may request an opinion from the City Attorney relating to any situation involving such official or employee, which may give rise to the possibility of conflict of interest under this code. Such requests shall be in writing, shall set forth the pertinent facts and shall be signed by the official or employee making the request, and shall, if requested by the officer or employee, be held in confidence and no disclosure thereof shall be made except as provided herein. [Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008. Prior code § 6.10.120. Formerly 2.24.120].

2.10.121 Service by mail and filing.

A. All motions or requests shall be served upon the opposing party. If service by mail is used, three days will be added for response time from the date of mailing. The party must certify the date mailed on the document. If the deadline falls on a weekend or holiday, the deadline shall fall on the next City business day.

B. All documents shall be filed with the Clerk. [Ord. 02-2017 § 1, 2017].

2.10.122 Hearing.

A. All hearings shall be before the hearing officer who shall preside.

B. The hearing officer may administer oaths, hold hearings, and take testimony. The hearing officer may, on their own or in response to a motion by a party to the hearing, request the presence of witnesses and the production of records, books, and papers at the hearing.

C. The complainant and the respondent may each present opening statements setting out the matters they intend to prove. The complainant shall proceed first with his or her evidence and the respondent shall follow, setting forth his or her evidence. The complainant and the respondent may make closing arguments.

D. The Alaska Rules of Evidence do not apply to the admission of evidence in a hearing, but the hearing officer’s findings of fact must be based on reliable and relevant evidence.

E. At the conclusion of the presentation of evidence and closing arguments, the hearing officer shall consider the allegations, the evidence supporting them, and the respondent’s evidence. [Ord. 02-2017 § 1, 2017].

2.10.123 Findings of fact and conclusions of law.

A. The hearing officer shall enter findings of fact and conclusions of law no later than 30 days after the conclusion of the hearing. The hearing officer shall notify the parties and their attorneys if an extension is required to permit the preparation of findings of fact and conclusions of law.

B. If the hearing officer finds that no violation has occurred, the complaint shall be dismissed. The Clerk shall serve the notice of dismissal on the complainant, the respondent, and attorneys. The notice of dismissal remains confidential.

C. If the hearing officer finds that a violation of this chapter has been committed, the hearing officer shall prepare and submit its findings of fact and conclusions of law to the City Council.

D. The findings of fact and conclusions of law are final and conclusive.

E. If the hearing officer determines that no violation has occurred, or otherwise dismisses the complaint for substantive reasons, the hearing officer may award full or partial attorney fees to a public official who reasonably incurred those costs defending the complaint. This award may be made against the City only to the extent that the City Council has appropriated funds for that purpose. [Ord. 02-2017 § 1, 2017].

2.10.124 Appeal of findings of fact and conclusions of law and penalty.

A. If the hearing officer imposes a penalty with its decision, appeal of the findings of fact and conclusions of law and the penalty may be taken to the Superior Court in accordance with the Alaska Rules of Appellate Procedure.

B. Notice of an appeal must be filed with the Superior Court within 30 days of the imposition of the penalty. [Ord. 02-2017 § 1, 2017].

2.10.130 Prohibited acts.

A. No City officer or employee shall engage in any act in conflict with the performance of his official duties and shall disqualify himself from participating in any official action in which he has a substantial financial interest.

B. The following prohibited acts are deemed to be in conflict with the performance of an officer or employee’s official duties. No officer or employee shall:

1. Fail to disclose that he possesses a substantial financial interest in an organization doing business with the City;

2. Fail to disclose a substantial financial interest as required under this chapter;

3. Receive or acquire a substantial financial interest in any sale to or purchase from the City of any goods or services with knowledge at the time of receiving or acquiring such interest that the City intends to purchase or sell such goods or services;

4. Accept any retainer, gift, or favor from any person or organization having dealings with the City when that retainer, gift or favor constitutes a substantial financial interest and when the City official or employee has knowledge that such retainer, gift or favor is given with the intent to obtain special consideration as to any action by such officer or employee in his official capacity;

5. Have a substantial financial interest in an organization doing business with the City and influence or attempt to influence the City’s selection of, or conduct of business with, such organization, corporation, association or enterprise by the City;

6. Disclose confidential information concerning the property, government, or affairs of the governmental body by which he or she is employed or appointed without proper legal authorization, or use such information to advance the financial or other private interest of himself or others;

7. Serve as a member of the City Council and have either (a) paid employment with the City other than payment for such Council membership or (b) a substantial or controlling interest in a corporation, firm, association or enterprise doing business with the City;

8. Simultaneously be a paid City employee and a candidate for election to the City Council or Mayor. Before a paid employee may file a petition for election, he or she must first terminate such employment with the City. This provision is not intended to prohibit payment by the City of a salary to the Mayor. [Ord. 05-2017(S) § 7, 2017; Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008; Ord. 431-01 § 1, 2001. Prior code § 6.10.080. Formerly 2.24.130].

2.10.140 Failure to provide information.

It is unlawful for any person duly summoned to attend as a witness before the hearing officer to fail or refuse, without lawful excuse, to attend pursuant to such summons, or to willfully refuse to be sworn or to affirm or to answer any material or proper question, or to produce, upon reasonable notice, any material or proper documents, papers, books, accounts, letters or records in his possession or under his control, or having been duly sworn to tell the truth, to knowingly give false testimony as to any material matter. [Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008. Prior code § 6.10.110(B). Formerly 2.24.140].

2.10.150 Cancellation of contracts.

Any contract between the City and another party shall be voidable or rescindable at the option of the Council at any time within a period of one year from the date of execution of such contract, if any officer or employee of the City has any interest in such contract and does not disclose such interest. [Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008; amended during 1986 codification. Prior code § 6.10.130. Formerly 2.24.150].

2.10.160 Violations by appointed officers – Penalty.

If the hearing officer determines that any appointed City officer or employee has violated the ethical standards set forth in this code, the hearing officer shall deliver a copy of its written decision to the Mayor and Council and such City officer or employee who has violated the ethical standards together with the hearing officer’s recommendation for disciplinary action. In addition to any other penalty herein or otherwise provided by law, violation of such ethical standards by a nonelected officer or employee shall be cause for suspension, discharge, or removal from office, or such other disciplinary action as the Council may determine. [Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008. Prior code § 6.10.060. Formerly 2.24.160].

2.10.170 Violations by elected officials and paid or unpaid members of boards and commissions – Penalty.

If the hearing officer determines that an elected official or paid or unpaid member of a board or commission has violated the ethical standards as set forth in this code, he or she shall deliver a copy of written recommendations to the Council which may take such action as it is empowered to do by law, including but not limited to removal from office and censure action. [Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008. Prior code § 6.10.070. Formerly 2.24.170].

2.10.180 Violation – Reprimand and/or dismissal.

Any person in violation of this code shall be subject to censure, reprimand, and/or immediate dismissal from office, in addition to any other applicable penalty under law. [Ord. 02-2017 § 1, 2017; Ord. 535-08 § 11, 2008; Ord. 9-7-82 § 6, 1982. Formerly 2.24.180].