|
0UU~CLIuvl 1 0. nCla, wue-S nuyrn wdrn iu reierence speanc pnvacy iaws or laws regaralng puouc recoros, or rerer more
<br />to such laws.
<br />210. tNaiVers
<br />To discuss waivers and exclusions, click here.
<br />1. Upon written application and upon a showing of compelling need by the applicant, at an open session after public notice, th
<br />Ethics Commission may in exceptional circumstances grant the applicant a waiver of subsections 1-10, 1-11, 13-19, 21 of 10C
<br />101(1)lal, 106, or 108 of this code.
<br />2. Waivers must be in writing and must state the grounds upon which they are granted. Within ten days after granting a waive
<br />the Ethics Commission must publish a notice setting forth the name of the person or entity requesting the waiver and a gener<
<br />description of the nature of the waiver in the official newspaper designated by the city for legal notices. All waiver applications
<br />decisions, and other records and proceedings relating to waivers will be indexed and maintained on file by the Ethics Commis
<br />Comment: A provision for waivers of ethics provisions is dangerous because it opens the door fo the wholesale gutting of an
<br />ethics code, encourages political pressure on ethics commissions by individuals and groups wiihin the community, and leads
<br />charges of partiality, all of which undercut the perception of the ethics commission as an impartial body of high integriry. For tl
<br />reasons, many municipalities may wish to forego a provision for waivers. Other municipalities, concerned about the need to
<br />remedy unnecessary hardship thai ethics provisions may impose upon an individual in a particular instance, will wish to run tl
<br />risks.
<br />To minimize the risks, this section sets a high standard for granting a waiver ("compelling need" and "exceptional circumstanc
<br />resiricts waivers to certain specified provisions, and requires that the waiver be published. Moreover, the meeting of the ethic:
<br />commission at which the waiver is considered must be held in open session afrer public notice.
<br />Some cities may want to list criteria for providing waivers. For example, here are the criteria that Baltimore considers sufficien
<br />(one of either (1)-(4) pius (5)):
<br />(1) the action would constitute an unreasonable invasion of privacy;
<br />(2) compliance would constitute a hardship;
<br />(3) the nature of the activities of the person, agency, board, or commission does not require compliance;
<br />(4) compliance would significantly reduce the availability of qualified people for public service;
<br />(5) the particular exemption would not be contrary to the purposes of this article.
<br />Some cities may want to list possible reasons for waivers as a guide for both officials and the ethics commission. For examplo
<br />here are Denver's sample waivers for nepotism:
<br />(1) The relative who was proposed to be hired was certified through a competitive process conducted pursuant to law, and thi
<br />officer, official, or employee who would make the appointment did not influence or affect the certification.
<br />(2) The officer, official, or employee who would officially make the appointment is acting ministerially and did not select the rel
<br />or attempt to influence the person who did.
<br />(3) The relative who would be in the line of supervision was already working in the agency before the officer, official, or emplo
<br />came into the line of supervision, and the officer, official, or employee can and will abstain from participating in any personnel
<br />actions involving the relative.
<br />And then ihere are exemptions. Some codes include a number of exemptions, providing an alternative list of provisions ihat s
<br />what is acceptable, as opposed to what constitutes a violation. These exemptions have been omitted from this model code,
<br />because I feel they are self-evident and because, although they are self-evident, they can be used as defenses by responder
<br />who can say they misconstrued their conduct as falling within one of ihe exemptions. For example, as I said above, the stana
<br />of interference wiih discharge of duties is too ambiguous a criterion; when it is applied in the negative sense (as in (b) below)
<br />ihat there is no conflict of interest where there is no such interference - it is easy to argue that there was no such interference
<br />Here is what the IMLA Model Code lisis as exemptions:
<br />(a) No provision of this Ordinance shall be construed to prohibit or restrict any City employee from negotiating, entering into o
<br />enforcing a collective bargaining agreement between the City and a labor union to which the employee belongs pursuant to s
<br />or federal law. No public servant shall be deemed to have a conflict of interest due to any lawful action taken pursuant to a
<br />collective bargaining agreement. The mere fact that public servants have entered into a collective bargaining agreement,
<br />however, shatl not exempt them from any provision of this Ordinance unless the City is barred by the collective bargaining
<br />agreement from adopting the provision in question.
<br />(b) This Ordinance does not prevent any public servant from accepting other employment or following any pursuit which in nc
<br />interferes with the full and faithful discharge of his or her public duties, provided that the public servant complies with all appli~
<br />City requirements, including any requirements imposed by this Ordinance.
<br />(c) No public servant shall be deemed to have a confiict of interest by virtue of carrying out any contract pursuant to which th(
<br />public servant directly or indirectly received income or benefits in the form of compensation for the performance of official dut
<br />(d) A former public servant is not prohibited from entering into a contract to represent the City in any matter.
<br />(e) No public servant shall be deemed to have a conflict of interest by virtue of sharing, directly or indirectly, in the benefit of
<br />lawful City action when the benefit to the public servant is substantially the same as the benefit to the public at large or to a
<br />segment of the pubiic to whom the benefit is provided in a nondiscriminatory manner.
<br />(fl This Ordinance does not prohibit any public servant from taking any action to
<br />approve the lawful payment of salaries, employee benefits, reimbursements of actual and necessary expenses, or other law
<br />payments which are authorized in accordance with City policies.
<br />(g) This Ordinance does not prohibit public servants from taking any officiai action properly within the scope of their duties H
<br />respect to any proposal to enact or modify law or public policy.
<br />(h) This Ordinance does not prohibit an elected official from raising campaign contributions in any manner which is otherwis
<br />permitted by law.
<br />(i) This Ordinance does not prohibit communication between an individual or organization and a candidate regarding the
<br />candidate's views, record or plans for future action regarding an issue or measure in an attempt to determine a candidate's
<br />5fl.-.
<br />
|