City ethics committee to consider rule, procedure changes

After the first city ethics hearing in February exposed flaws in the rules and procedures that were established in 2017, city staff and outside counsel began working on revisions.

Proposed changes to the rules go to the ethics committee on May 17 and if accepted, will then go to the City Commission for consideration.

The ethics committee was established as part of a series of changes to deal with conflict of interest issues that had been identified in the city’s Community Development Block Grant funding process. In 2017, the U.S. Department of Housing an Urban Development decline funding for Paris Gibson Square after the museum’s director, Tracy Houck, who was also a sitting City Commissioner at the time, penned a letter to the city expressing frustration that her agency didn’t get funding and alleging that a member of the deciding committee had a conflict of interest.

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Further resident complaints about Houck and Commissioner Bill Bronson lead to additional HUD investigation and more CDBG funding being pulled from local organizations.

One piece of the city’s effort to correct the issues and restore compliance with HUD to prevent the loss of the city’s CDBG allocation, was the creation of the ethics committee and other ethics policies.

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The first ethics complaint heard by the committee was against Houck in February regarding a Facebook post by Houck and her involvement in the local womens march.

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After that hearing, city staff and outside counsel “recognized that the process did not work as was intended to provide a full and clear process,” according to the staff report. “The determinations required to be made under the ordinance in existence in February, unfortunately led to confusion by all parties involved.”

Under the current process, the committee has to determine whether there is an appearance of an ethics violation; and then whether there is an actual violation.

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Staff is recommending a change that would require the committee to determine whether a complaint appears to be substantiated based on information and testimony presented and if so, it may refer the matter to the Cascade County attorney or to the supervisor of a public employee who may be the subject of the complaint.

The committee would still be required to make written findings of its decision to be filed with the city clerk.

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Staff is also recommending that the committee revise its rules to include a more formalized process with forms for complaints and responses to complaints; presentation of supporting documents; reasons for the parties’ positions; and time lines for presenting documents.

“These changes will assist in allowing for a clearer and understandable process for all parties involved, including the person who is the subject of any complaint. It also will allow employees the ability to defend challenges to their actions and allow their supervisors to internally address complaints which are found to be substantiated,” according to the staff report.

In April, City Attorney Sara Sexe and outside counsel Jordan Crosby presented the proposed changes to the City Commission during a work session.

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Crosby was hired by the City of Bozeman to represent its ethics board with that board’s first complaint, which was filed last fall, before the first complaint was filed in Great Falls. The Bozeman case involved the city’s election for a new public safety center. The ethics board and district court dismissed the complaints against the city earlier this year.

She was also assigned to the City of Great Falls’ ethics board through the Montana Municipal Interlocal Authority, which is the city’s insurance carrier.

Sexe said that immediately after the committee’s first hearing in February, she started working on changes to the process.

Commissioner Mary Moe has during several public meetings expressed a desire to dissolve the committee.

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Moe said during the April 16 work session that she believes the committee meets infrequently and as a result, wouldn’t have the experience with due process.

She said that, “because process is set up by us and approved by us, the appearance of not having our hands on it is something that we just can’t overcome.”

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“We would respectfully disagree with abolishing the committee,” Sexe said during the April 16 work session. “It’s really good for the public to know that the process is available even if it’s not used very often. It enhances trust and transparency in our city government and if we impose the process on ourselves we show that we recognize that we have standards to live up to even though it may be uncomfortable at times.”

During training through MMIA for municipal attorneys last week, Commissioner of Political Practices Jeff Mangan discussed ethics committees.

He told The Electric this week that during the training, he encouraged local governments to create the ethics panels as allowed under state law and to utilize them or have them available for citizens.

The only other option citizens have is to complain to county attorneys and Mangan said he also encouraged county attorneys to create some kind of standard practice or procedure for ethics complaints so that it’s understandable to citizens.

The Electric asked the Cascade County Attorney’s Office if there was a procedure for ethics complaint or any form for residents to use.

Carey Ann Haight, chief civil deputy for the county, said in an email “the County Attorney’s Office does not have nor does it insist that complaints be submitted on any particularized form.”

During the training, Managn said he pointed out that Bozeman and Great Falls had created committees and “was glad to see that those communities took the step to create one. They’re ultimately good for the community that they serve.”

The state statute allows municipalities to create three-member ethics panels and create rules and procedures. Under the law, the members may not be employees or officers of the local government.

Mangan said he didn’t have concerns about the ethics board members being appointed by the commission.

For ethics boards that don’t have many complaints, Mangan said they could get creative and meet quarterly to offer training or community discussions with residents about ethics or answer questions about the process.

“I think it’s a good thing for the government and the citizens,” he said.

Crosby said during the April 16 work session that most other Montana cities were seeing increases in ethics complaints.

During the April 16 work session, Crosby said that by keeping the city panel, it provides employees and elected officials a chance to respond on the record to complaints, an option that isn’t provided under the state statute for municipalities without an ethics board.

Under state law, no procedure is laid out for how county attorneys should handle ethics complaints for municipalities that don’t have ethics committees other than being able to request information from the person making the complaint or the subject of the complaint in order to make a determination.

Without an ethics committee, if the county attorney finds a complaint is justified, he or she may bring an action in district court seeking a civil fine of not less than $50 or more than $1,000. If the county attorney determines that the complaint alleges a criminal violation, the county attorney shall bring criminal charges against the officer or employee, according to the statute.

If the county attorney declines to bring an action, the person alleging the violation can file in district court seeking a civil fine of not less than $50 and not more than $1,000.

If the city has an ethics committee and it declines to hear a complaint or determines that it’s unsubstantiated, the matter dies.

In the Bozeman case, the judge specifically stated that the county attorney only has enforcement authority if the ethics board refers a matter to the county attorney.

Sexe and Crosby said without an ethics committee, an unsubstantiated complaint could be drawn out for a long period of time, creating financial drain on the city as is happening in Bozeman.

“Does it need revision? Yes. However, we just don’t believe that completely abandoning it is a very good idea, especially after just having one hearing,” Sexe said.

This kind of citizen panel, Sexe said, “can provide outside view of often murky ethical situations that are created in the public sector, also gives city attorney an additional resource in considering ethical issues where political consequence might result.”

Crosby said that county attorneys are also busy and “the likelihood that they would have the experience any more than your panel is pretty minimal. They don’t have this similar thing and frankly, counties don’t see these kind of complaints at the same level that municipalities do.”

The current ethics committee includes an attorney with experience in ethical cases, and two others with ethics backgrounds.

When the committee members were appointed in January 2018, Moe said she was impressed with the caliber of the applicants and made her motion to appoint the current members based on their experience with public administration, governmental operation, political practices or legal practice.

Civil cases also take significantly more time since criminal and youth in need of care cases take precedent, the attorneys said. Crosby said most of her civil cases are taking two to three years.

The city has several pending civil cases to include a stormwater case filed in 2015 and a civil suit regarding the chicken ordinance that was filed in 2016.

Moe asked what kind of attorneys fees the city would be willing to accept for cases sent to court. Sexe said if employees are sued for actions taken as part of their job, the city is required to pay for legal fees. For elected officials, depending on the nature of the case, the city may incur legal fees.