Monday, December 05, 2011

ETHICS FOR CITIES AND COUNTIES

There have been numerous complaints about elected and appointed officials, regarding deals, conflicts of interest, and deriving personal benefits from their individual service to the public. The State of Utah has enacted laws to protect against such abuse and have in place a mechanism to remove or replace those who violate these laws. For the laws to work properly, requires vigilance on the part of all citizens as well as scrutiny of the process known as governing. The First act is known as the “Municipal Officers and Employees Ethics Act.” It covers all elected and appointed officials in a Municipality. 10-3-1301. Short title. This part is known as the "Municipal Officers' and Employees' Ethics Act." 10-3-1302. Purpose. The purposes of this part are to establish standards of conduct for municipal officers and employees and to require these persons to disclose actual or potential conflicts of interest between their public duties and their personal interests. 10-3-1303. Definitions. As used in this part: (1) "Appointed officer" means any person appointed to any statutory office or position or any other person appointed to any position of employment with a city or with a community development and renewal agency under Title 17C, Limited Purpose Local Government Entities - Community Development and Renewal Agencies Act. Appointed officers include, but are not limited to, persons serving on special, regular, or full-time committees, agencies, or boards whether or not such persons are compensated for their services. The use of the word "officer" in this part is not intended to make appointed persons or employees "officers" of the municipality. (2) "Assist" means to act, or offer or agree to act, in such a way as to help, represent, aid, advise, furnish information to, or otherwise provide assistance to a person or business entity, believing that such action is of help, aid, advice, or assistance to such person or business entity and with the intent to assist such person or business entity. (3) "Business entity" means a sole proprietorship, partnership, association, joint venture, corporation, firm, trust, foundation, or other organization or entity used in carrying on a business. (4) "Compensation" means anything of economic value, however designated, which is paid, loaned, granted, given, donated, or transferred to any person or business entity by anyone other than the governmental employer for or in consideration of personal services, materials, property, or any other thing whatsoever. (5) "Elected officer" means a person: (a) elected or appointed to the office of mayor, commissioner, or council member; or (b) who is considered to be elected to the office of mayor, commissioner, or council member by a municipal legislative body in accordance with Section20A-1-206. (6) "Improper disclosure" means disclosure of private, controlled, or protected information to any person who does not have both the right and the need to receive the information. (7) "Municipal employee" means a person who is not an elected or appointed officer who is employed on a full or part-time basis by a municipality or by a community development and renewal agency under Title 17C, Limited Purpose Local Government Entities - Community Development and Renewal Agencies Act. (8) "Private, controlled, or protected information" means information classified as private, controlled, or protected under Title 63G, Chapter 2, Government Records Access and Management Act or other applicable provision of law. (9) "Substantial interest" means the ownership, either legally or equitably, by an individual, the individual's spouse, or the individual's minor children, of at least 10% of the outstanding shares of a corporation or 10% interest in any other business entity. 10-3-1304. Use of office for personal benefit prohibited. (1) As used in this section, "economic benefit tantamount to a gift" includes: (a) a loan at an interest rate that is substantially lower than the commercial rate then currently prevalent for similar loans; and (b) compensation received for private services rendered at a rate substantially exceeding the fair market value of the services. (2) It is an offense for an elected or appointed officer or municipal employee, under circumstances not amounting to a violation of Section 63G-6-1001 or 76-8-105, to: (a) disclose or improperly use private, controlled, or protected information acquired by reason of the officer's or employee's official position or in the course of official duties in order to further substantially the officer's or employee's personal economic interest or to secure special privileges or exemptions for the officer or employee or for others; (b) use or attempt to use the officer's or employee's official position to: (i) further substantially the officer's or employee's personal economic interest; or (ii) secure special privileges for the officer or employee or for others; or (c) knowingly receive, accept, take, seek, or solicit, directly or indirectly, for the officer or employee or for another, a gift of substantial value or a substantial economic benefit tantamount to a gift that: (i) would tend improperly to influence a reasonable person in the person's position to depart from the faithful and impartial discharge of the person's public duties; or (ii) the person knows or that a reasonable person in that position should know under the circumstances is primarily for the purpose of rewarding the person for official action taken. (3) Subsection (2)(c) does not apply to: (a) an occasional non-pecuniary gift having a value of less than $50; (b) an award publicly presented in recognition of public services; (c) any bona fide loan made in the ordinary course of business; or (d) a political campaign contribution. 10-3-1305. Compensation for assistance in transaction involving municipality -- Public disclosure and filing required. (1) As used in this section, "municipal body" means any public board, commission, committee, or other public group organized to make public policy decisions or to advise persons who make public policy decisions. (2) It is an offense for an elected officer, or appointed officer, who is a member of a public body, under circumstances not amounting to a violation of Section 63G-6-1001 or 76-8-105, to receive or agree to receive compensation for assisting any person or business entity in any transaction involving the municipality in which the member is an officer unless the member: (a) files with the mayor a sworn statement giving the information required by this section; and (b) discloses the information required by Subsection (5) in an open meeting to the members of the body of which the officer is a member immediately before the discussion. (3) It is an offense for an appointed officer who is not a member of a public body or a municipal employee to receive or agree to receive compensation for assisting any person or business entity in any transaction involving the municipality by which the person is employed unless the officer or employee: (a) files with the mayor a sworn statement giving the information required by this section; and (b) discloses the information required by Subsection (5) to: (i) the officer or employee's immediate supervisor; and (ii) any other municipal officer or employee who may rely upon the employee's representations in evaluating or approving the transaction. (4) (a) The officer or employee shall file the statement required to be filed by this section 10 days before the date of any agreement between the elected or appointed officer or municipal employee and the person or business entity being assisted or 10 days before the receipt of compensation by the officer or employee, whichever is earlier. (b) The statement is public information and shall be available for examination by the public. (5) The statement and disclosure shall contain: (a) the name and address of the officer or municipal employee; (b) the name and address of the person or business entity being or to be assisted or in which the appointed or elected official or municipal employee has a substantial interest; and (c) a brief description of the transaction as to which service is rendered or is to be rendered and of the nature of the service performed or to be performed. 10-3-1306. Interest in business entity regulated by municipality -- Disclosure statement required. (1) Every appointed or elected officer or municipal employee who is an officer, director, agent, or employee or the owner of a substantial interest in any business entity which is subject to the regulation of the municipality in which he is an elected or appointed officer or municipal employee shall disclose the position held and the nature and value of his interest upon first becoming appointed, elected, or employed by the municipality, and again at any time thereafter if the elected or appointed officer's or municipal employee's position in the business entity has changed significantly or if the value of his interest in the entity has increased significantly since the last disclosure. (2) The disclosure shall be made in a sworn statement filed with the mayor. The mayor shall report the substance of all such disclosure statements to the members of the governing body, or may provide to the members of the governing body copies of the disclosure statement within 30 days after the statement is received by him. (3) This section does not apply to instances where the value of the interest does not exceed $2,000. Life insurance policies and annuities may not be considered in determining the value of any such interest. 10-3-1307. Interest in business entity doing business with municipality -- Disclosure. (1) Every appointed or elected officer or municipal employee who is an officer, director, agent, employee, or owner of a substantial interest in any business entity which does or anticipates doing business with the municipality in which he is an appointed or elected officer or municipal employee, shall publicly disclose to the members of the body of which he is a member or by which he is employed immediately prior to any discussion by such body concerning matters relating to such business entity, the nature of his interest in that business entity. (2) The disclosure statement shall be entered in the minutes of the meeting.(3) Disclosure by a municipal employee under this section is satisfied if the employee makes the disclosure in the manner required by Sections 10-3-1305 and 10-3-1306. 10-3-1308. Investment creating conflict of interest with duties -- Disclosure. Any personal interest or investment by a municipal employee or by any elected or appointed official of a municipality which creates a conflict between the employee's or official's personal interests and his public duties shall be disclosed in open meeting to the members of the body in the manner required by Section 10-3-1306. 10-3-1309. Inducing officer or employee to violate part prohibited. It is a class A misdemeanor for any person to induce or seek to induce any appointed or elected officer or municipal employee to violate any of the provisions of this part. 10-3-1310. Penalties for violation -- Dismissal from employment or removal from office. In addition to any penalty contained in any other provision of law, any person who knowingly and intentionally violates this part, with the exception of Sections 10-3-1306, 10-3-1307, 10-3-1308, and 10-3-1309, shall be dismissed from employment or removed from office and is guilty of: (1) a felony of the second degree if the total value of the compensation, conflict of interest, or assistance exceeds $1,000; (2) a felony of the third degree if: (a) the total value of the compensation, conflict of interest, or assistance is more than $250 but not more than $1,000; or (b) the elected or appointed officer or municipal employee has been twice before convicted of violation of this chapter and the value of the conflict of interest, compensation, or assistance was $250 or less; (3) a class A misdemeanor if the value of the compensation or assistance was more than $100 but does not exceed $250; or (4) a class B misdemeanor if the value of the compensation or assistance was $100 or less. 10-3-1311. Complaints charging violations -- Procedure. (1) Any complaint against a person who is under the merit system, charging that person with a violation of this part, shall be filed and processed in accordance with the provisions of the merit system. (2) If the person charged with the violation is not under any merit system, then the complaint shall be filed with the mayor or city manager. The mayor or city manager shall investigate the complaint and shall give the person an opportunity to be heard. A written report of the findings and the recommendation of the mayor or city manager shall be filed with the governing body. If the governing body finds that the person has violated this part, it may dismiss, suspend, or take such other appropriate action with respect to the person. 10-3-1312. Violation of disclosure requirements -- Penalties -- Rescission of prohibited transaction. If any transaction is entered into in connection with a violation of Section 10-3-1305, 10-3-1306, 10-3-1307, or 10-3-1308, the municipality: (1) shall dismiss or remove the appointed or elected officer or municipal employee who knowingly and intentionally violates this part from employment or office; and (2) may rescind or void any contract or subcontract entered into pursuant to that transaction without returning any part of the consideration received by the municipality. The second act covers all County officers, employees as well as those appointed their respective positions. 17-16a-1. Citation of chapter. This chapter may be cited as the "County Officers and Employees Disclosure Act." 17-16a-2. Purposes. The purposes of this chapter are to establish standards of conduct for county officers and employees and to require these persons to disclose conflicts of interest between their public duties and their personal interests. 17-16a-3. Definitions. As used in this part: (1) "Appointed officer" means any person appointed to any statutory office or position or any other person appointed to any position of employment with a county, except special employees. Appointed officers include, but are not limited to persons serving on special, regular or full-time committees, agencies, or boards whether or not such persons are compensated for their services. The use of the word "officer" in this part is not intended to make appointed persons or employees "officers" of the county. (2) "Assist" means to act, or offer or agree to act, in such a way as to help, represent, aid, advise, furnish information to, or otherwise provide assistance to a person or business entity, believing that such action is of help, aid, advice, or assistance to such person or business entity and with the intent to so assist such person or business entity. (3) "Business entity" means a sole proprietorship, partnership, association, joint venture, corporation, firm, trust, foundation, or other organization or entity used in carrying on a business. (4) "Compensation" means anything of economic value, however designated, which is paid, loaned, granted, given, donated or transferred to any person or business entity for or in consideration of personal services, materials, property, or any other thing whatsoever. (5) "Elected officer" means any person elected or appointed to any office in the county. (6) "Governmental action" means any action on the part of a county including: (a) any decision, determination, finding, ruling, or order; and (b) any grant, payment, award, license, contract, subcontract, transaction, decision, sanction, or approval, or the denial thereof, or the failure to act in respect to. (7) "Special employee" means any person hired on the basis of a contract to perform a special service for the county pursuant to an award of a contract following a public bid. (8) "Substantial interest" means the ownership, either legally or equitably, by an individual, the individual's spouse, and the individual's minor children, of at least 10% of the outstanding shares of a corporation or 10% interest in any other business entity. 17-16a-4. Prohibited use of official position -- Exception. (1) Except as provided in Subsection (3), it is an offense for an elected or appointed officer, under circumstances not amounting to a violation of Section 63G-6-1001 or 76-8-105, to: (a) disclose confidential information acquired by reason of the officer's official position or use that information to secure special privileges or exemptions for himself or others; (b) use or attempt to use the officer's official position to secure special privileges for the officer or for others; or (c) knowingly receive, accept, take, seek or solicit, directly or indirectly, any gift or loan for the officer or for another, if the gift or loan tends to influence the officer in the discharge of the officer's official duties. (2) This section is inapplicable to: (a) an occasional non-pecuniary gift having a value of less than $50; (b) an award publicly presented; (c) any bona fide loan made in the ordinary course of business; or (d) political campaign contributions actually used in a political campaign. (3) A member of a county legislative body who is also a member of the governing board of a provider of mental health or substance abuse services under contract with the county does not commit an offense under Subsection (1)(a) or (b) by discharging, in good faith, the duties and responsibilities of each position, if the county legislative body member does not participate in the process of selecting the mental health or substance abuse service provider. 17-16a-5. Compensation for assistance in transaction involving county -- Public disclosure and filing required. (1) No elected or appointed officer may receive or agree to receive compensation for assisting any person or business entity in any transaction involving the county in which he is an officer unless he files with the county legislative body a sworn statement giving the information required by this section, and discloses in open meeting to the members of the body of which he is a member, immediately prior to the discussion, the information required by Subsection (3). (2) The statement required to be filed by this section shall be filed 10 days prior to the date of any agreement between the elected or appointed officer and the person or business entity being assisted or 10 days prior to the receipt of compensation by the business entity. The statement is public information and is available for examination by the public. (3) The statement and disclosure shall contain the following information: (a) the name and address of the officer; (b) the name and address of the person or business entity being or to be assisted, or in which the appointed or elected official has a substantial interest; and (c) a brief description of the transaction as to which service is rendered or is to be rendered and of the nature of the service performed or to be performed. 17-16a-6. Interest in business entity regulated by county -- Disclosure. Every appointed or elected officer who is an officer, director, agent, or employee or the owner of a substantial interest in any business entity which is subject to the regulation of the county in which the officer is an elected or appointed officer shall disclose the position held and the precise nature and value of the officer's interest upon first becoming appointed or elected, and again during January of each year thereafter during which the officer continues to be an appointed or elected officer. The disclosure shall be made in a sworn statement filed with the county legislative body. The commission shall report the substance of all such disclosure statements to the members of the governing body or may provide to the members of the governing body, copies of the disclosure statement within 30 days after the statement is received. This section does not apply to instances where the value of the interest does not exceed $2,000, and life insurance policies and annuities may not be considered in determining the value of the interest. 17-16a-7. Interest in business entity doing business with county -- Disclosure. Every appointed or elected officer who is an officer, director, agent, or employee, or owner of a substantial interest in any business entity which does or anticipates doing business with the county in which he is an appointed or elected officer, shall publicly disclose to the members of the body on which he is a member immediately prior to any discussion by such body matters relating to such business entity, the nature of his interest in that business entity. The disclosure statement shall be entered in the minutes of the meeting. 17-16a-8. Investment creating conflict of interest with duties -- Disclosure. Any personal interest of or investment by any elected or appointed official of a county which creates a potential or actual conflict between the official's personal interests and his public duties shall be disclosed in open meeting to the members of the body in the manner required by Section 17-16a-6. 17-16a-9. Inducing officer to violate provisions prohibited. No person shall induce or seek to induce any appointed or elected officer to violate any of the provisions of this part. 17-16a-10. Violation a misdemeanor -- Removal from office. In addition to any penalty contained in any other provision of law, any person who knowingly and intentionally violates this part is guilty of a class A misdemeanor and shall be dismissed from employment or removed from office. 17-16a-11. Complaints charging violations -- Procedure. (1) Any complaint against a person who is under the merit system, charging that person with a violation of this part, shall be filed and processed in accordance with the provisions of the merit system. (2) If the person charged with the violation is not under any merit system, then the complaint shall be filed with the commission which shall investigate the complaint and shall give the person an opportunity to be heard. A written report of the findings and the recommendation of the commission shall be filed with the governing body. If the governing body finds that the person has violated this part, it may dismiss, suspend, or take such other appropriate action with respect to the person. 17-16a-12. Rescission of prohibited transaction. If any transaction is entered into in connection with a violation of Section 17-16a-6, the county may rescind or void any contract or subcontract entered into pursuant to that transaction without returning any part of the consideration received by the county. The State of Utah also covers malfeasance in office by elected officials. 17-16-10.5. Failure to perform duties constitutes malfeasance in office -- Felony charges arising from official duties -- Paid administrative leave -- Reassignment of duties. (1) The failure of an elected county or prosecution district officer substantially to perform the officer's official duties constitutes malfeasance in office under Section 77-6-1. (2) (a) If an elected county or prosecution district officer is charged with the commission of a felony arising from conduct related to the officer's official duties, the officer shall be placed on paid administrative leave by the county legislative body until: (i) the charges are dismissed or the officer is acquitted, at which time the officer shall be entitled to return to office, unless the officer's term of office has in the meantime expired; or (ii) the officer is convicted of a felony or attempt to commit a felony arising from conduct related to the officer's official duties, in which case the sentencing judge shall order the officer removed from office. (b) A conviction or a plea of guilty or nolo contendere, relating to a felony charge described in Subsection (2)(a), constitutes malfeasance in office for purposes of Section 77-6-1. (c) Entry of a plea in abeyance is the equivalent of a conviction for purposes of Subsection (2)(a)(ii), even if the charge is later dismissed pursuant to a plea in abeyance agreement. (d) The provisions under this Subsection (2) for the removal of a county or prosecution district officer are in addition to and do not replace or supersede the removal provisions under Title 77, Chapter 6, Removal by Judicial Proceedings. (3) (a) During the time that an elected county or prosecution district officer is on paid administrative leave under Subsection (2), the officer's duties may, except as provided in Subsection (3)(c), be temporarily: (i) reassigned to another officer by the county legislative body; or (ii) performed by a person employed for that purpose. (b) For purposes of Subsection (3)(a) with respect to a prosecution district officer in a multi-county prosecution district, "county legislative body" means the legislative bodies of all counties included in the prosecution district. (c) A reassignment under Subsection (3)(a) may not result in the same person exercising the duties of: (i) both a county legislative body member or county treasurer and county auditor; or (ii) both a county executive and county auditor

1 comment:

MIcheal Thomas said...

Thanks for sharing nice post. i have been looking information on the "ETHICS FOR CITIES AND COUNTIES" this discussion has solve my concern to a great extent . i am grateful.

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