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HomeMy WebLinkAboutFS 2013-11-05 Item 5G - Ordinance - TMC 2.95 "Code of Ethics" Amendment (3 Options)TO: City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM Mayor Haggerton Finance and Safety Committee FROM: Shelley Kerslake, City Attorney DATE: October 30, 2013 SUBJECT: Amendments to Tukwila Municipal Code 2.95 — Code of Ethics Option 1. 5 member Board Comprised of Commission Chairs — Adjudication of Complaints by the City Council. At the Finance and Safety Committee meeting of October 22, 2013, the Committee reviewed an ordinance amending the City's Ethics Code which included the creation of an ethics Board which would receive ethics complaints and make an initial determination regarding sufficiency of the complaint. After review, the Committee requested that three separate ordinances be created for consideration: (1) Creation of an Ethics Board comprised of the chairs of the City's current commissions who would render a sufficiency determination, cause and investigation to occur and forward the matter to the City Council for adjudication of the complaint; (2) Creation of an Ethics Board comprised of the chairs of the City's current commissions who would render a sufficiency determination and adjudicate the complaint and (3) Creation of an Ethics Board appointed by the Mayor and Council, with rigorous qualifications. This Board would render a sufficiency determination and adjudicate the complaint. The ordinance attached to this memo represents Option 1. In this ordinance an Ethics Board is created and the membership is comprised of the commission chairs from the City's five standing commissions. Under this model, the Board will make an initial determination of complaint sufficiency. If the complaint is found to be initially sufficient, the Board will cause an investigation to be completed. The investigator will make findings of fact but will not draw any conclusions. Upon receipt of the investigation, the Board will forward the findings to the Council. The Council will then determine whether an ethics violation has occurred and render the appropriate penalty, if necessary. This process will apply to all elected officials and appointed board and commission members. ATTACHMENTS Ordinance — Ethics Code — Option 1 91 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, REPEALING ORDINANCE NOS. 2127 AND 2068, AS CODIFIED IN TUKWILA MUNICIPAL CODE CHAPTER 2.95, "CODE OF ETHICS;" ADOPTING A NEW TUKWILA MUNICIPAL CODE CHAPTER 2.95, "CODE OF ETHICS;" PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City adopted a Code of Ethics by Ordinance No. 2068 on November 15, 2004 and amended the same by Ordinance No. 2127 on August 7, 2006; and WHEREAS, the City Council desires to repeal the current Code of Ethics codified in Tukwila Municipal Code Chapter 2.95 and enact a new Tukwila Municipal Code Chapter 2.95 to address issues related to elected officials and to provide for a Board of Ethics; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Repealer. Ordinance Nos. 2127 and 2068, as codified in Tukwila Municipal Code (TMC) Chapter 2.95, "Code of Ethics," are hereby repealed in their entirety. Section 2. New TMC Chapter 2.95, "Code of Ethics," Adopted. A new Tukwila Municipal Code Chapter 2.95, "Code of Ethics," is hereby adopted to read as follows: CHAPTER 2.95 CODE OF ETHICS Sections: 2.95.010 Purpose 2.95.020 Definitions 2.95.030 Prohibited Conduct 2.95.040 Board of Ethics 2.95.0450 Complaint Process 2.95.050 Penalties for Noncompliance 2.95.060 Where to Seek Review W: Word Processing \Ordinances \Code of Ethics - Option 1 strike -thru 10 -29 -13 SK:bjs Page 1 of 11 93 Section 3. TMC Section 2.95.010 is hereby established to read as follows: 2.95.010 Purpose A. It is the policy of the City of Tukwila to uphold, promote and demand the highest standard of ethics from all of its employees and officials, whether elected, appointed or hired. City officers and employees shall maintain the utmost standards of personal integrity, truthfulness, honesty and fairness in carrying out their public duties; they shall avoid any improprieties in their roles as public servants, including the appearance of impropriety; and they shall never use their City positions or powers for improper personal gain. B. It is the intention of the City Council that TMC Chapter 2.95 be liberally interpreted to accomplish its purpose of protecting the public against decisions that are affected by undue influence, conflicts of interest, or any other violation of this Code of Ethics. In interpreting TMC Chapter 2.95, City officers and employees should be guided by common sense and practicality. This Code of Ethics is supplemental to Washington State law, RCW 42.23. Section 4. TMC Section 2.95.020 is hereby established to read as follows: 2.95.020 Definitions As used in TMC Chapter 2.95, these words shall have the following meanings, unless the context clearly indicates otherwise: 1. `Appearance of impropriety" refers to a situation which to a reasonable person without knowledge of the specific circumstances might seem to raise ethical issues. An example of such conduct could be when a person regularly and reliably collects money for his or her employer in his or her personal wallet and later gives it to his or her employer. By putting it in his or her personal wallet, it may look improper and give rise to suspicion. 2. `Adverse to the interests of the City" means taking action which could damage or prejudice the interests of the City or its citizens. 34. "Business" means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, consultant, holding company, joint stock company, receivership, trust, or any legal entity organized for profit. 42. "City officer or employee" means every individual elected, appointed, hired, or otherwise selected to an office or position with the City, or any subdivision thereof, whether such individual is paid or unpaid. 53. "Compensation" means payment in any form, for real or personal property or services of any kind. W: Word Processing \Ordinances \Code of Ethics - Option 1 strike -thru 10 -29 -13 SK:bjs Page 2 of 11 95 96 64. "Gift" means a voluntary transfer of real or personal property of any kind, or the voluntary rendition of services of any kind, without consideration of equal or greater value, but not including any reasonable hosting, including travel-expenses, entertainment, meals, or refreshments expenses incurred furnished in connection with appearances, ceremonies, and occasions reasonably related to official City business, where otherwise permitted by law. 76. "Hearing Examiner" shall mean the duly appointed and qualified Hearing Examiner for the City of Tukwila, or his /her designee. 86. "Immediate family" shall mean spouses, dependents, anyone residing in the person's household, and anyone within three generations by blood or marriage of the person or the person's spouse; e.g., within three degrees of relationship by blood or marriagel. P. "Person" means any individual, or—corporation, business or other entity, however constituted, organized or designated. Section 5. TMC Section 2.95.030 is hereby established to read as follows: 2.95.030 Prohibited Conduct The following shall constitute violations of this Code of Ethics: 1. General Prohibition Against Conflicts of Interest. In order to avoid becoming involved or implicated in a conflict of interest or impropriety, or conflict of interest or impropriety, no current City officer or employee should be involved in any activity that might be seen as conflicting with the conduct of official City business or as adverse to the interests of the City. Even the appearance of the conduct prohibited in TMC Section 2.95.030 alone may be sufficient to constitute a violation of this Code of Ethics. an appearance of 2. Beneficial Interests in Contracts Prohibited. No City officer or employee shall participate in his /her capacity as a City officer or employee in the making of a contract in which she /he has a financial interest, direct or indirect. This shall include any contract for sale, lease or purchase, with or for the use of the City, or the acceptance directly or indirectly of any compensation, gratuity or reward from any other person beneficially interested therein. Except, that this prohibition shall not apply where the City officer or employee has only a remote interest in the contract, and where the fact and extent of such interest is disclosed and noted in the official minutes or similar records of the City prior to formation of the contract, and thereafter the governing body authorizes, approves or ratifies the contract in good faith, by a vote of its membership sufficient for the purpose without counting the vote(s) of the officer(s) having the remote interest. For purposes of TMC Chapter 2.95, a "remote interest" means: a. That of a non - salaried officer of a nonprofit corporation; b. That of an employee or agent of a contracting party where the compensation of such employee or agent consists entirely of fixed wages or salary; W: Word Processing \Ordinances \Code of Ethics - Option 1 strike -thru 10 -29 -13 SK:bjs Page 3 of 11 97 c. That of a landlord or tenant of a contracting party; or d. That of a holder of less than one percent of the shares of a corporation, a limited liability company, or other entity, which is a contracting party. 3. Beneficial Influence in Contract Selection Prohibited. No City officer or employee shall influence the City's selection of, or its conduct of business with, a corporation, person or firm having or proposing to do business with the City, if the City officer or employee has a financial interest in or with the corporation, person or firm, unless such interest is a remote interest and where the fact and extent of such interest is disclosed and noted in the official minutes or similar records of the City prior to formation of the contract., as defined in TMC 8.21.020. 4. Representation of Private Person at City Proceeding Prohibited. No City officer or employee shall appear on behalf of a private person, other than him /herself or an immediate family member, or except as a witness under subpoena, before any regulatory governmental agency or court of law in an action or proceeding to which the City or a City officer in an official capacity is a party, or accept a retainer or compensation that is contingent upon a specific action by the City. This provision shall not preclude an employee from exercising rights protected by the Public Employees Collective Bargaining Act, including the right to appear and /or testify in a legal proceeding on behalf of a labor organization representing employees or seeking to represent employees of the City. 5. Certain Private Employment Prohibited. No City officer or employee shall engage in or accept private employment from — or render services for — any private interest, when such employment or service is incompatible with the proper discharge of official duties or would tend to impair independence of judgment or action in the performance of official duties. This provision shall not interfere with an employee's right to engage in off duty employment that is authorized pursuant to a collective bargaining agreement and /or Tukwila Police Department General Orders. 6. Beneficial Interest in Legislation Prohibited. No City officer or employee, in appearing before the City Council or when giving an official opinion before the City Council, shall have a financial interest in any legislation coming before the City Council or participate in discussion with or give an official opinion to the City Council, unless such interest is a remote interest and where the fact and extent of such interest is disclosed and noted on the record of the Council or similar records of the City, prior to consideration of the legislation by the City Council. 7. Disclosure of Confidential Information Prohibited. No City officer or employee shall disclose or use any confidential, privileged or proprietary information, gained by reason of his /her official position, for a purpose which is other than a City purpose; provided, that nothing shall prohibit the disclosure or use of information which is a matter of public knowledge, or which is available to the public upon request. This provision shall not preclude an employee from exercising rights protected by the Public Employees Collective Bargaining Act, including the right of a labor organization to utilize and disclose properly obtained information that the City deems confidential, privileged, or proprietary. W: Word Processing \Ordinances \Code of Ethics - Option 1 strike -thru 10 -29 -13 SK:bjs Page 4 of 11 99 8. Improper Use of Position Prohibited. No City officer or employee shall knowingly use his /her office or position to secure personal benefit, gain or profit, or use his /her position to secure special privileges or exceptions for him /herself, or for the benefit, gain or profit of any other persons. This provision shall not preclude an employee from exercising rights protected by the Public Employees Collective Bargaining Act, including the right to negotiate agreements that address the wages, hours, and working conditions of employees of the City. 9. Improper Use of City Personnel Prohibited. No City officer or employee shall employ or use any person under the officer's or employee's official control or direction for the personal benefit, gain or profit of the officer or employee, or another. This section does not apply to off -duty employment relationships, which are mutually negotiated. 10. Improper Use of City Property Prohibited. No City officer or employee shall use City owned vehicles, equipment, materials, money or property for personal or private convenience or profit. Use is restricted to such services as are available to the public generally, for the authorized conduct of official City business, and for such purposes and under such conditions as are approved by administrative order of the Mayor; provided, the use of a City vehicle by a City officer or employee participating in a carpooling program established by the City, and for a purpose authorized under such program, shall not be considered a violation of TMC Chapter 2.95 or of any other provision of the TMC Tukwila Municipal Code. 11. Acceptance of Compensation, Gifts, Favors, Rewards or Gratuity Prohibited. No City officer or employee may, directly or indirectly, give or receive, or agree to give or receive, any compensation, gift, favor, reward or gratuity, for a matter connected with or related to the officer's or employee's services with the City of Tukwila; except this prohibition shall not apply to: a. Attendance of a City officer or employee at a hosted meal when it is provided in conjunction with a meeting directly related to the conduct of City business, or where official attendance by the officer or employee as a City representative is appropriate; b. An award publicly presented in recognition of public service; Of c. Any gift valued at $100.00 or less, which cannot reasonably be presumed to influence the vote, action or judgment of the officer or employee, or be considered as part of a reward for action or inaction -. or d. An employee serving as a representative of a labor organization and /or an employee receiving compensation, gifts, or rewards from a labor organization of which he /she is a member. 12. Impermissible Conduct After Leaving City Service. a. Disclosure of Privileged, Confidential, or Proprietary Information Prohibited. No former officer or employee shall disclose or use any privileged, confidential or proprietary information gained because of his /her City employment. W: Word Processing \Ordinances \Code of Ethics - Option 1 strike -thru 10 -29 -13 SK:bjs 100 Page 5 of 11 b. Participation in City Matters Prohibited. No former officer or employee shall, during the period of one year after leaving City office or employment: 1. Assist any person in matters involving the City if, while in the course of duty with the City, the former officer or employee was officially involved in the matter, or personally and substantially participated in the matter, or acted on the matter; 2. Represent any person as an advocate in any matter in which the former officer or employee was involved while a City officer or employee; or 3. Participate as or with a bidder, vendor or consultant in any competitive selection process for a City contract in which s /he assisted the City in determining the project or work to be done, or the process to be used. c. Duty to Inform. Whenever a City officer or employee wishes to contract with a former City officer or employee for expert or consultant services within one year of the latter's leaving City service, advance notice shall be given to the Mayor about the proposed agreement. d. Exceptions. The prohibitions of TMC subsections 2.95.030(12)(b)(1) and (2), shall not apply to a former officer or employee acting on behalf of a governmental agency, unless such assistance or representation is adverse to the interest of the City. Section 6. TMC Section 2.95.040 is hereby established to read as follows: 2.95.040 Board of Ethics A. There is created a Board of Ethics for the City of Tukwila. The purpose of this Board of Ethics is to review ethics complaints for an initial determination of sufficiency before an investigation is initiated and to provide advisory opinions when requested. B. The Board of Ethics shall be composed of five members. The Board shall be comprised of the Chairs of the City's five standing committees — the Planning Commission, the Arts Commission, the Park Commission, the Equity and Diversity Commission and the Civil Service Commission.. Should the chair of any commission be unable or unwilling to serve on the Board of Ethics, the most senior member of the commission shall be selected. C. The Chair of the Board shall be elected by the Board members and shall serve as Chair for one year, at which time a new election shall occur. D. A majority of the Board of Ethics shall constitute a quorum. The Board shall meet as frequently as it deems necessary and in accordance with the provisions of the Tukwila Municipal Code. The Board shall adopt procedures consistent with the provisions of the Tukwila Municipal Code governing the conduct of its meetings. The Board shall be supported by outside counsel if the complaint is against an elected official and by the City Attorney's Office if the complaint is against an employee. W: Word Processing \Ordinances \Code of Ethics - Option 1 strike -thru 10 -29 -13 SK:bjs Page 6 of 11 101 E. The powers of the Ethics Board include rendering sufficiency determinations as described in TMC Section 2.95.045 and responding to requests from City - elected officials for advisory opinions regarding the application of the Code of Ethics to the prospective conduct of such person. Section 7. TMC Section 2.95.045 is hereby established to read as follows: 2.95.0450 Complaint Process A. A complaint that this Code of Ethics has been violated may be filed with any one of the following officers, or his /her designee(s): 1. Mayor; or 2. City Attorney 3. City Clerk. - B. No person shall knowingly file a false complaint or report of violation of this Code of Ethics. C. Any individual receiving a complaint that this Code of Ethics has been violated has an obligation to promptly forward the complaint, in writing, to the Mayor.to the Board of Ethics for a sufficiency determination. After reviewing the complaint, the Board may take any of the following actions and inform the complainant, the respondent and the City Attorney or Mayor, as appropriate: 1. Determine that the facts stated in the complaint, even if true, would not constitute a violation of the Code of Ethics. 2. Determine that the facts stated in the complaint, even if true, would not constitute a material violation of the Code of Ethics because any potential violation was inadvertent or minor or has been adequately cured, such that further proceedings on the complaint would not serve the purposes of the Code of Ethics. 3. Make a preliminary determination that the facts stated in the complaint, if true, could potentially constitute a violation of the Code of Ethics such that further proceedings are warranted. D. The Board shall submit a written report with its findings within 10 days of its receipt of the written complaint. The Board's determination of sufficiency is final and binding and no appeal is available. If the Board finds the complaint sufficient, then the complaint shall be investigated as set forth below. E. For all sufficient complaints, the City Attorney_The Mayor shall promptly designate an individual to conduct an investigation of the complaint. However, if the complaint Attorney, who shall designate an individual to conduct an investigation. W: Word Processing \Ordinances \Code of Ethics - Option 1 strike -thru 10 -29 -13 SK:bjs 102 Page 7 of 11 DF. Upon receipt of a complaint regarding an elected official or an appointed member of a board or commission, the City Attorney shall forward a confidential memorandum to all Councilmembers informing them that a complaint has been made. €G. The individual designated to conduct the investigation shall notify the subject of the complaint that a complaint has been made. The designated investigator shall ;then complete the investigation and prepare written findings and conclusions within 60 days of the date the complaint is deemed sufficient receivcd by the Mayor, unless an extension is granted in writing by the Mayor -or City Attorney, . However, if the complaint is against an elected official, the investigator is to only find facts and make no conclusions regarding whether the Code of Ethics has been violated. A copy of the written investigation findings and conclusions shall be provided to the Mayor or City Attorney. -as FH. Within 5 business days of receipt of the investigator's written findings and conclusions, the Mayor or City Attorney, as appropriatc, shall forward a copy of the investigation to the Department Head or Mayor, as appropriate, if the complaint is against an employee and to the Council President if the complaint is against an elected official or appointed board or commission member. the complaint. Copies of the - e"' - - - - - - - - investigation conclusionsshall be forwarded by certified mail to the complaining party and the party complained against at their last known addresses. dcsignee, and the person(s) responsible for acting on the recommended disposition. The requested. GI. When the complaint is against an elected official or appointed board or commission member, the investigative findings and conclusions as discussed in TMC Section 2.95.0450( FH), as well as the recommended disposition, shall be placed on the next regularly scheduled Council meeting agenda for discussion and disposition pursuant to TMC Section 2.95.050, by majority vote of the Council., for informational purposcs only. 4J. The party complained against may, within 10 business days following the date of athe recommended disposition, which that finds a violation of this Code of Ethics, request in writing a formal hearing before the Hearing Examiner. A request for a formal hearing shall be in writing. Except for good cause shown, the hearing shall be scheduled to take place not sooner than 20 days nor later than 60 days from the date the appeal is filed. 1K. Within 30 days after the conclusion of the a formal hearing, the Hearing Examiner shall, based upon a preponderance of the evidence, prepare findings of fact, conclusions of law, and his /her order. Copies of the Hearing Examiner's findings, conclusions and order shall be forwarded by certified mail to the complaining party and the party complained against at their last known addresses. Additional copies of the findings, conclusions and order shall be forwarded to the investigator, the City Attorney or the City Attorney's designee, and the person(s) responsible for acting on the Hearing Examiner's order. In the case of a complaint against an elected official or appointed board or W: Word Processing \Ordinances \Code of Ethics - Option 1 strike -thru 10 -29 -13 SK:bjs Page 8of11 103 commission member, the Hearing Examiner's findings wi41 -shall be forwarded to the City Council and placed on the next regularly scheduled Council meeting agenda, for informational purposes only. Section 8. TMC Section 2.95.050 is hereby established to read as follows: 2.95.050 Penalties for Noncompliance A. Any person, other than an employee covered by a collective bargaining agreement,, found by a preponderance of the evidence to have violated any provision of this Code of Ethics; may be subject t en one or more of the following penalties: 1. A cease and desist order as to violations of this Code of Ethics; 2. requested_ An order to disclose any reports or other documents or information 3. An order to pay to the City a civil penalty of up to $1,000.00, where it is determined disciplinary measures are not appropriate under the circumstances; 4. Discipline, up to and including termination or removal from any position whether paid or unpaid, excluding elected positions, only after notice and hearing as provided by law. The pre - disciplinary procedures set forth in the provisions of the Tukwila Municipal Code and applicable personnel policies shall be followed for regular City employees, in the Classified City Scrvico; 5. Exclusion from bidding on City contracts for a period of up to 5 years; and /or 6. Termination or invalidation of contract(s) entered into in violation of the Code of Ethics, only if such contract(s) provide for termination in the event of a Code of Ethics violation. B. Any allegation that an employee who is covered by a collective bargaining agreement has violated any provision of this Code of Ethics shall be investigated in accordance with the applicable collective bargaining agreement and Department Policies, Procedures, or General Orders. For any proven violation of this Code of Ethics, an employee may be disciplined up to and including termination in accordance with the applicable collective bargaining agreement. Any such discipline may be appealed in accordance with the applicable collective bargaining agreement or Civil Service Rules. C. If the complaint is against an elected or appointed official, the Council may take any of the following actions by a majority vote of the Council: 1. Admonition. An admonition shall be a verbal non - public statement made by the Council President, or his or her designee, to the individual. The action of the Council shall be final and not subject to further review; W: Word Processing \Ordinances \Code of Ethics - Option 1 strike -thru 10 -29 -13 SK:bjs 104 Page 9of11 2. Reprimand. A reprimand shall be administered to the individual by letter. The letter shall be prepared by the Council. The action of the Council shall be final and not subject to further review;. - 3. Censure. A censure shall be a written statement administered personally to the individual. The individual shall appear at a time and place directed by the Council to receive such censure. Notice shall be given at least 20 days before the scheduled appearance at which time a copy of the proposed censure shall be provided to the individual. Within 5 days of receipt of the notice, the individual may file a request for review of the content of the proposed censure with the City Council. Such a request will stay the administration of the censure. The City Council shall review the proposed censure in light of the investigator's recommendation and the request for review, and may take whatever action appears appropriate under the circumstances. The action of the Council shall be final and not subject to further review. If no such request is received, the censure shall be administered at the time and place set. It shall be given publicly, and the individual shall not make any statement in support of or in opposition to or in mitigation thereof. A censure shall be deemed administered at the time it is scheduled whether or not the individual appears as required; or, 4. Removal. If the individual against whom the complaint has been filed is a member of a City board or commission, the City Council may, by majority vote, remove the individual from such board or commission; provided however, that nothing in this section authorizes the City Council to remove the Mayor and /or a Councilmember from his or her office. Section 9. TMC Section 2.95.060 is hereby established to read as follows: 2.95.060 Where to Seek Review A. Cease and Desist Order. If ordered to cease and desist violating this Code of Ethics, an affected party may seek review by writ of review from the King County Superior Court pursuant to RCW 7.16, or other appropriate legal action. B. Public Disclosure. If ordered to disclose any documents or papers pursuant to this Code of Ethics, an affected party may seek review by writ of review from the King County Superior Court pursuant to RCW 7.16, or other appropriate legal action. C. Civil Penalty. If ordered to pay a civil penalty, an appeal may be taken in the form of a trial de novo in the Tukwila Municipal Court, which shall hear the case according to the Civil Rules for Courts of Limited Jurisdiction and applicable local rules of the Tukwila Municipal Court. This appeal shall be taken by filing in the Tukwila Municipal Court a notice of appeal within 14 days of the date of the final written order. The person filing the appeal shall also, within the same 14 days, serve a copy of the notice of appeal on the person who issued the final written order and the City Attorney, or his /her designee, and file an acknowledgment or affidavit of service in the Tukwila Municipal Court. D. Discipline or Removal. If an employee or officer is disciplined or removed from office, then the person disciplined or removed from office may seek whatever remedies may be available at law or in equity. W: Word Processing \Ordinances \Code of Ethics - Option 1 strike -thru 10 -29 -13 SK:bjs Page 10 of 11 105 E. Exclusion from Public Bidding. If ordered to be excluded from bidding on public contracts and the exclusion actually occurs, the person excluded may seek whatever remedies exist at law or in equity. F. Termination of Contract(s). If termination of contract(s) is ordered, the person whose contract(s) was /were terminated may seek whatever remedies exist at law or in equity. Section 10. Corrections by City Clerk or Code Reviser. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and section /subsection numbering. Section 11. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 12. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force five days after passage and publication as provided by law. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of , 2013. ATTEST /AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk APPROVED AS TO FORM BY: Office of the City Attorney Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: W: Word Processing \Ordinances \Code of Ethics - Option 1 strike -thru 10 -29 -13 SK:bjs 106 Page 11 of 11 TO: City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM Mayor Haggerton Finance and Safety Committee FROM: Shelley Kerslake, City Attorney DATE: October 30, 2013 SUBJECT: Amendments to Tukwila Municipal Code 2.95 — Code of Ethics Option 2. 5 member Board Comprised of Commission Chairs — Adjudication of Complaints by the Board. At the Finance and Safety Committee meeting of October 22, 2013, the Committee reviewed an ordinance amending the City's Ethics Code which included the creation of an ethics Board which would receive ethics complaints and make an initial determination regarding sufficiency of the complaint. After review, the Committee requested that three separate ordinances be created for consideration: (1) Creation of an Ethics Board comprised of the chairs of the City's current commissions who would render a sufficiency determination, cause and investigation to occur and forward the matter to the City Council for adjudication of the complaint; (2) Creation of an Ethics Board comprised of the chairs of the City's current commissions who would render a sufficiency determination and adjudicate the complaint and (3) Creation of an Ethics Board appointed by the Mayor and Council, with rigorous qualifications. This Board would render a sufficiency determination and adjudicate the complaint. The ordinance attached to this memo represents Option 2. In this ordinance an Ethics Board is created and the membership is comprised of the commission chairs from the City's five standing commissions. Under this model, the Board will make an initial determination of complaint sufficiency. If the complaint is found to be initially sufficient, the Board will cause an investigation to be completed. The investigator will make findings, conclusions and a recommendation. Upon receipt of the investigation, the Board will determine that a violation of the ethics code did not occur; that it needs more information to make a determination and hold a hearing which is limited in scope; or determine that a violation occurred. The Board will draft a recommendation to the Council related to the recommended disposition. This process will apply to all elected officials and appointed board and commission members. ATTACHMENTS Ordinance — Ethics Code — Option 2 107 DRAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, REPEALING ORDINANCE NOS. 2127 AND 2068, AS CODIFIED IN TUKWILA MUNICIPAL CODE CHAPTER 2.95, "CODE OF ETHICS;" ADOPTING A NEW TUKWILA MUNICIPAL CODE CHAPTER 2.95, "CODE OF ETHICS;" PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City adopted a Code of Ethics by Ordinance No. 2068 on November 15, 2004 and amended the same by Ordinance No. 2127 on August 7, 2006; and WHEREAS, the City Council desires to repeal the current Code of Ethics codified in Tukwila Municipal Code Chapter 2.95 and enact a new Tukwila Municipal Code Chapter 2.95 to address issues related to elected officials and to provide for a Board of Ethics; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Repealer. Ordinance Nos. 2127 and 2068, as codified in Tukwila Municipal Code (TMC) Chapter 2.95, "Code of Ethics," are hereby repealed in their entirety. Section 2. New TMC Chapter 2.95, "Code of Ethics," Adopted. A new Tukwila Municipal Code Chapter 2.95, "Code of Ethics," is hereby adopted to read as follows: CHAPTER 2.95 CODE OF ETHICS Sections: 2.95.010 Purpose 2.95.020 Definitions 2.95.030 Prohibited Conduct 2.95.040 Board of Ethics 2.95.0450 Complaint Process 2.95.050 Penalties for Noncompliance 2.95.060 Where to Seek Review W: Word Processing \Ordinances \Code of Ethics - Option 2 strike -thru 10 -30 -13 SK:bjs Page 1 of 12 109 1 Section 3. TMC Section 2.95.010 is hereby established to read as follows: 2.95.010 Purpose A. It is the policy of the City of Tukwila to uphold, promote and demand the highest standard of ethics from all of its employees and officials, whether elected, appointed or hired. City officers and employees shall maintain the utmost standards of personal integrity, truthfulness, honesty and fairness in carrying out their public duties; they shall avoid any improprieties in their roles as public servants, including the appearance of impropriety; and they shall never use their City positions or powers for improper personal gain. B. It is the intention of the City Council that TMC Chapter 2.95 be liberally interpreted to accomplish its purpose of protecting the public against decisions that are affected by undue influence, conflicts of interest, or any other violation of this Code of Ethics. In interpreting TMC Chapter 2.95, City officers and employees should be guided by common sense and practicality. This Code of Ethics is supplemental to Washington State law, RCW 42.23. Section 4. TMC Section 2.95.020 is hereby established to read as follows: 2.95.020 Definitions As used in TMC Chapter 2.95, these words shall have the following meanings, unless the context clearly indicates otherwise: 1. `Appearance of impropriety" refers to a situation which to a reasonable person without knowledge of the specific circumstances might seem to raise ethical issues. An example of such conduct could be when a person regularly and reliably collects money for his or her employer in his or her personal wallet and later gives it to his or her employer. By putting it in his or her personal wallet, it may look improper and give rise to suspicion. 2. `Adverse to the interests of the City" means taking action which could damage or prejudice the interests of the City or its citizens. 34. "Business" means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, consultant, holding company, joint stock company, receivership, trust, or any legal entity organized for profit. 42. "City officer or employee" means every individual elected, appointed, hired, or otherwise selected to an office or position with the City, or any subdivision thereof, whether such individual is paid or unpaid. 53. "Compensation" means payment in any form, for real or personal property or services of any kind. W: Word Processing \Ordinances \Code of Ethics - Option 2 strike -thru 10 -30 -13 SK:bjs Page 2 of 12 111 1' M. "Gift" means a voluntary transfer of real or personal property of any kind, or the voluntary rendition of services of any kind, without consideration of equal or greater value, but not including any reasonable hosting, including travel-expenses, entertainment, meals, or refreshments expenses incurred furnished in connection with appearances, ceremonies, and occasions reasonably related to official City business, where otherwise permitted by law. 76. "Hearing Examiner" shall mean the duly appointed and qualified Hearing Examiner for the City of Tukwila, or his /her designee. 86. "Immediate family" shall mean spouses, dependents, anyone residing in the person's household, and anyone within three generations by blood or marriage of the person or the person's spouse; e.g., within three degrees of relationship by blood or marriage,. 97. "Person" means any individual, ei-corporation, business or other entity, however constituted, organized or designated. Section 5. TMC Section 2.95.030 is hereby established to read as follows: 2.95.030 Prohibited Conduct The following shall constitute violations of this Code of Ethics: 1. General Prohibition Against Conflicts of Interest. In order to avoid becoming involved or implicated in a conflict of interest or impropriety, or an appearance of conflict of interest or impropriety, no current City officer or employee should be involved in any activity that might be seen as conflicting with the conduct of official City business or as adverse to the interests of the City. Even the appearance of the conduct prohibited in TMC Section 2.95.030 alone may be sufficient to constitute a violation of this Code of Ethics. 2. Beneficial Interests in Contracts Prohibited. No City officer or employee shall participate in his /her capacity as a City officer or employee in the making of a contract in which she /he has a financial interest, direct or indirect. This shall include any contract for sale, lease or purchase, with or for the use of the City, or the acceptance directly or indirectly of any compensation, gratuity or reward from any other person beneficially interested therein. Except, that this prohibition shall not apply where the City officer or employee has only a remote interest in the contract, and where the fact and extent of such interest is disclosed and noted in the official minutes or similar records of the City prior to formation of the contract, and thereafter the governing body authorizes, approves or ratifies the contract in good faith, by a vote of its membership sufficient for the purpose without counting the vote(s) of the officer(s) having the remote interest. For purposes of TMC Chapter 2.95, a "remote interest" means: a. That of a non - salaried officer of a nonprofit corporation; b. That of an employee or agent of a contracting party where the compensation of such employee or agent consists entirely of fixed wages or salary; W: Word Processing \Ordinances \Code of Ethics - Option 2 strike -thru 10 -30 -13 SK:bjs Page 3 of 12 113 114 c. That of a landlord or tenant of a contracting party; or d. That of a holder of less than one percent of the shares of a corporation, a limited liability company, or other entity, which is a contracting party. 3. Beneficial Influence in Contract Selection Prohibited. No City officer or employee shall influence the City's selection of, or its conduct of business with, a corporation, person or firm having or proposing to do business with the City, if the City officer or employee has a financial interest in or with the corporation, person or firm, unless such interest is a remote interest and where the fact and extent of such interest is disclosed and noted in the official minutes or similar records of the City prior to formation of the contract, as defined in TMC 8.24.020. 4. Representation of Private Person at City Proceeding Prohibited. No City officer or employee shall appear on behalf of a private person, other than him /herself or an immediate family member, or except as a witness under subpoena, before any regulatory governmental agency or court of law in an action or proceeding to which the City or a City officer in an official capacity is a party, or accept a retainer or compensation that is contingent upon a specific action by the City. This provision shall not preclude an employee from exercising rights protected by the Public Employees Collective Bargaining Act, including the right to appear and /or testify in a legal proceeding on behalf of a labor organization representing employees or seeking to represent employees of the City. 5. Certain Private Employment Prohibited. No City officer or employee shall engage in or accept private employment from — or render services for — any private interest, when such employment or service is incompatible with the proper discharge of official duties or would tend to impair independence of judgment or action in the performance of official duties. This provision shall not interfere with an employee's right to engage in off duty employment that is authorized pursuant to a collective bargaining agreement and /or Tukwila Police Department General Orders. 6. Beneficial Interest in Legislation Prohibited. No City officer or employee, in appearing before the City Council or when giving an official opinion before the City Council, shall have a financial interest in any legislation coming before the City Council or participate in discussion with or give an official opinion to the City Council, unless such interest is a remote interest and where the fact and extent of such interest is disclosed and noted on the record of the Council or similar records of the City, prior to consideration of the legislation by the City Council. 7. Disclosure of Confidential Information Prohibited. No City officer or employee shall disclose or use any confidential, privileged or proprietary information, gained by reason of his /her official position, for a purpose which is other than a City purpose; provided, that nothing shall prohibit the disclosure or use of information which is a matter of public knowledge, or which is available to the public upon request. This provision shall not preclude an employee from exercising rights protected by the Public Employees Collective Bargaining Act, including the right of a labor organization to utilize and disclose properly obtained information that the City deems confidential, privileged, or proprietary. W: Word Processing \Ordinances \Code of Ethics - Option 2 strike -thru 10 -30 -13 SK:bjs Page 4 of 12 115 8. Improper Use of Position Prohibited. No City officer or employee shall knowingly use his /her office or position to secure personal benefit, gain or profit, or use his /her position to secure special privileges or exceptions for him /herself, or for the benefit, gain or profit of any other persons. This provision shall not preclude an employee from exercising rights protected by the Public Employees Collective Bargaining Act, including the right to negotiate agreements that address the wages, hours, and working conditions of employees of the City. 9. Improper Use of City Personnel Prohibited. No City officer or employee shall employ or use any person under the officer's or employee's official control or direction for the personal benefit, gain or profit of the officer or employee, or another. This section does not apply to off -duty employment relationships, which are mutually negotiated. 10. Improper Use of City Property Prohibited. No City officer or employee shall use City owned vehicles, equipment, materials, money or property for personal or private convenience or profit. Use is restricted to such services as are available to the public generally, for the authorized conduct of official City business, and for such purposes and under such conditions as are approved by administrative order of the Mayor; provided, the use of a City vehicle by a City officer or employee participating in a carpooling program established by the City, and for a purpose authorized under such program, shall not be considered a violation of TMC Chapter 2.95 or of any other provision of the TMC Tukwila Municipal Code. 11. Acceptance of Compensation, Gifts, Favors, Rewards or Gratuity Prohibited. No City officer or employee may, directly or indirectly, give or receive, or agree to give or receive, any compensation, gift, favor, reward or gratuity, for a matter connected with or related to the officer's or employee's services with the City of Tukwila; except this prohibition shall not apply to: a. Attendance of a City officer or employee at a hosted meal when it is provided in conjunction with a meeting directly related to the conduct of City business, or where official attendance by the officer or employee as a City representative is appropriate; b. An award publicly presented in recognition of public service; er c. Any gift valued at $100.00 or less, which cannot reasonably be presumed to influence the vote, action or judgment of the officer or employee, or be considered as part of a reward for action or inaction, -; or d. An employee serving as a representative of a labor organization and /or an employee receiving compensation, gifts, or rewards from a labor organization of which he /she is a member. 12. Impermissible Conduct After Leaving City Service. a. Disclosure of Privileged, Confidential, or Proprietary Information Prohibited. No former officer or employee shall disclose or use any privileged, confidential or proprietary information gained because of his /her City employment. W: Word Processing \Ordinances \Code of Ethics - Option 2 strike -thru 10 -30 -13 SK:bjs 116 Page 5 of 12 b. Participation in City Matters Prohibited. No former officer or employee shall, during the period of one year after leaving City office or employment: 1. Assist any person in matters involving the City if, while in the course of duty with the City, the former officer or employee was officially involved in the matter, or personally and substantially participated in the matter, or acted on the matter; 2. Represent any person as an advocate in any matter in which the former officer or employee was involved while a City officer or employee; or 3. Participate as or with a bidder, vendor or consultant in any competitive selection process for a City contract in which s /he assisted the City in determining the project or work to be done, or the process to be used. c. Duty to Inform. Whenever a City officer or employee wishes to contract with a former City officer or employee for expert or consultant services within one year of the latter's leaving City service, advance notice shall be given to the Mayor about the proposed agreement. d. Exceptions. The prohibitions of TMC subsections 2.95.030(12)(b)(1) and (2), shall not apply to a former officer or employee acting on behalf of a governmental agency, unless such assistance or representation is adverse to the interest of the City. Section 6. TMC Section 2.95.040 is hereby established to read as follows: 2.95.040 Board of Ethics A. There is created a Board of Ethics for the City of Tukwila. The purpose of this Board of Ethics is to review ethics complaints for an initial determination of sufficiency before an investigation is initiated, adjudicate ethics complaints against elected and appointed officials and provide advisory opinions for elected officials, when requested. B. The Board of Ethics shall be composed of five members. The Board shall be comprised of the Chairs of the City's five standing committees — the Planning Commission, the Arts Commission, the Park Commission, the Equity and Diversity Commission and the Civil Service Commission. Should the chair of any commission be unable or unwilling to serve on the Board of Ethics, the most senior member of the commission shall be selected. C. The Chair of the Board shall be elected by the Board Members and shall serve as Chair for one year, at which time a new election shall occur. D. A majority of the Board of Ethics shall constitute a quorum. The Board shall meet as frequently as it deems necessary and in accordance with the provisions of the Tukwila Municipal Code. The Board shall adopt procedures consistent with the provisions of the Tukwila Municipal Code governing the conduct of its meetings. The Board shall be supported by outside counsel if the complaint is against an elected official and by the City Attorney's Office if the complaint is against an employee. W: Word Processing \Ordinances \Code of Ethics - Option 2 strike -thru 10 -30 -13 SK:bjs Page 6 of 12 117 E. The powers of the Ethics Board include rendering sufficiency determinations as described in TMC Section 2.95.045, adjudicating ethics complaints against elected and appointed officials and responding to requests from City - elected officials for advisory opinions regarding the application of the Code of Ethics to the prospective conduct of such person. Section 7. TMC Section 2.95.045 is hereby established to read as follows: 2.95.0450 Complaint Process A. A complaint that this Code of Ethics has been violated may be filed with any one of the following officers, or his /her designee(s): 1. Mayor; ar 2. City Attorney 3. City Clerk- B. No person shall knowingly file a false complaint or report of violation of this Code of Ethics. C. Any individual receiving a complaint that this Code of Ethics has been violated has an obligation to promptly forward the complaint, in writing, to the Mayor.to the Board of Ethics for a sufficiency determination. After reviewing the complaint, the Board may take any of the following actions and inform the complainant, the respondent and the City Attorney or Mayor, as appropriate: 1. Determine that the facts stated in the complaint, even if true, would not constitute a violation of the Code of Ethics. 2. Determine that the facts stated in the complaint, even if true, would not constitute a material violation of the Code of Ethics because any potential violation was inadvertent or minor or has been adequately cured, such that further proceedings on the complaint would not serve the purposes of the Code of Ethics. 3. Make a preliminary determination that the facts stated in the complaint, if true, could potentially constitute a violation of the Code of Ethics such that further proceedings are warranted. D. The Board shall submit a written report with its findings within 10 days of its receipt of the written complaint. The Board's determination of sufficiency is final and binding and no appeal is available. If the Board finds the complaint sufficient, then the complaint shall be investigated as set forth below. E. For all sufficient complaints, the City Attorney_The Mayor shall promptly designate an individual to conduct an investigation of the complaint. However, if the complaint Attorney, who shall designate an individual to conduct an investigation. W: Word Processing \Ordinances \Code of Ethics - Option 2 strike -thru 10 -30 -13 SK:bjs 118 Page 7 of 12 DF. Upon receipt of a complaint regarding an elected official or an appointed member of a board or commission, the City Attorney shall forward a confidential memorandum to all Councilmembers informing them that a complaint has been made. €G. The individual designated to conduct the investigation shall notify the subject of the complaint that a complaint has been made. The designated investigator shall ;then complete the investigation and prepare written findings and conclusions within 60 days of the date the complaint is deemed sufficient - - - - e • - - e , unless an extension is granted in writing by the Mayor or City Attorney,-as-appropriate. A copy of the written investigation findings and conclusions shall be provided to the Mayo or City Attorney. -as aPlafolariate FH. Within 5 business days of receipt of the investigator's written findings and conclusions, the Mayor or City Attorney, as appropriate, shall forward a copy of the investigation to the Department Head or Mayor, as appropriate, if the complaint is against an employee and to the Chair of the Ethics Board, if the complaint is against an elected official or appointed board or commission member. disposition of the complaint. Copies of the recommended disposition and investigation findings and conclusions shall be forwarded by certified mail to the complaining party and the party complained against at their last known addresses. Additional copies of the City Attorney's designee, and the person(s) responsible for acting on the recommended disposition. i-equcsting a formal hearing, pursuant to TMC 2.95.040(H), has lapsed and no such hearing has been requested. GI. When the complaint is against an elected official or appointed board or commission member, the investigative findings and conclusions as discussed in TMC Section 2.95.0450(FH), as well as the recommended disposition, shall be forwarded to the Chair of the Ethics Board. Within 10 business days of receipt of the investigator's report, the Board shall convene and review the complaint, findings, conclusions and recommended disposition. As soon as practicable after giving due consideration to the complaint, the Board shall take any action or combination of actions that it deems appropriate and for which it is lawfully empowered to take including, but not limited to, the following: placed on the next regularly scheduled Council meeting agenda, for informational-purposes only. 1. Determine that no violation of the Code of Ethics has occurred. 2. Determine that a violation of the Code of Ethics has occurred. 3. If the Board determines that it needs more information to make a determination as to whether the Code of Ethics has been violated, it may convene a hearing to take such additional evidence as required by the Board. The scope of evidence requested by the Board should be strictly construed. At such hearing, the Board may call additional witnesses or consider additional documentary evidence. After final deliberations on the investigator's findings, as well as any additional testimony, statements, or documents presented at the hearing, the Board shall determine whether or not a violation of the Code of Ethics has occurred. W: Word Processing \Ordinances \Code of Ethics - Option 2 strike -thru 10 -30 -13 SK:bjs Page 8 of 12 119 4. After the Board has made its final determination under TMC Section 2.95.045, subsection I, (1), (2) or (3), the Board shall issue its written findings of fact and conclusions of law, along with its recommended disposition, if applicable. The Board's conclusions shall be based on the preponderance of evidence standard. The Board may recommend and the City Council may impose upon any elected or appointed official the penalties set forth in TMC Section 2.95.050. 5. Copies of the written findings of fact, conclusions and recommended disposition of the Board shall be forwarded by certified mail to the complaining party and the party complained against at their last known addresses. Additional copies shall be forwarded to the investigator, the City Attorney (or independent legal counsel), and the City Council for matters involving a City- elected official, a commission member or board member. J. Ex Parte Communications. After a complaint has been filed and during the pendency of a complaint before the Board, no member of the Board may communicate directly or indirectly with any party or other person about any issue or fact or law regarding the complaint, except that members of the Board may obtain legal advice with the assigned independent outside counsel. IK. The party complained against may, within 10 business days following the date of at-he recommended disposition, which that finds a violation of this Code of Ethics, request in writing a formal hearing before the Hearing Examiner. A request for a formal hearing shall be in writing. Except for good cause shown, the hearing shall be scheduled to take place not sooner than 20 days nor later than 60 days from the date the appeal is filed. IL. Within 30 days after the conclusion of the a formal hearing, the Hearing Examiner shall, based upon a preponderance of the evidence, prepare findings of fact, conclusions of law, and his /her order. Copies of the Hearing Examiner's findings, conclusions and order shall be forwarded by certified mail to the complaining party and the party complained against at their last known addresses. Additional copies of the findings, conclusions and order shall be forwarded to the investigator, the City Attorney or the City Attorney's designee, and the person(s) responsible for acting on the Hearing Examiner's order. In the case of a complaint against an elected official or appointed board or commission member, the Hearing Examiner's findings will -shall be forwarded to the City Council and placed on the next regularly scheduled Council meeting agenda, for informational purposes only. Section 8. TMC Section 2.95.050 is hereby established to read as follows: 2.95.050 Penalties for Noncompliance A. Any person, other than an employee covered by a collective bargaining agreement, found by a preponderance of the evidence to have violated any provision of this Code of Ethics, may be subject to any or a combination of the following penalties: W: Word Processing \Ordinances \Code of Ethics - Option 2 strike -thru 10 -30 -13 SK:bjs 120 Page 9 of 12 1. A cease and desist order as to violations of this Code of Ethics; 2. An order to disclose any reports or other documents or information requested_ 3. An order to pay to the City a civil penalty of up to $1,000.00, where it is determined disciplinary measures are not appropriate under the circumstances; 4. Discipline, up to and including termination or removal from any position whether paid or unpaid, excluding elected positions, only after notice and hearing as provided by law. The pre - disciplinary procedures set forth in the provisions of the Tukwila Municipal Code and applicable personnel policies shall be followed for regular City employees, in the Classified City Service; 5. Exclusion from bidding on City contracts for a period of up to 5 years; and /or 6. Termination or invalidation of contract(s) entered into in violation of the Code of Ethics, only if such contract(s) provide for termination in the event of a Code of Ethics violation. B. Any allegation that an employee who is covered by a collective bargaining agreement has violated any provision of this Code of Ethics shall be investigated in accordance with the applicable collective bargaining agreement and Department Policies, Procedures, or General Orders. For any proven violation of this Code of Ethics, an employee may be disciplined up to and including termination in accordance with the applicable collective bargaining agreement. Any such discipline may be appealed in accordance with the applicable collective bargaining agreement or Civil Service Rules. C. If the complaint is against an elected or appointed official, the Council may take any of the following actions by a majority vote of the Council: 1. Admonition. An admonition shall be a verbal non - public statement made by the Council President, or his or her designee, to the individual. The action of the Council shall be final and not subject to further review; 2. Reprimand. A reprimand shall be administered to the individual by letter. The letter shall be prepared by the Council. The action of the Council shall be final and not subject to further review;. - 3. Censure. A censure shall be a written statement administered personally to the individual. The individual shall appear at a time and place directed by the Council to receive such censure. Notice shall be given at least 20 days before the scheduled appearance at which time a copy of the proposed censure shall be provided to the individual. Within 5 days of receipt of the notice, the individual may file a request for review of the content of the proposed censure with the City Council. Such a request will stay the administration of the censure. The City Council shall review the proposed censure in light of the investigator's recommendation and the request for review, and may take whatever action appears appropriate under the circumstances. The action of the Council shall be final and not subject to further review. If no such request is received, the W: Word Processing \Ordinances \Code of Ethics - Option 2 strike -thru 10 -30 -13 SK:bjs Page 10 of 12 121 censure shall be administered at the time and place set. It shall be given publicly, and the individual shall not make any statement in support of or in opposition to or in mitigation thereof. A censure shall be deemed administered at the time it is scheduled whether or not the individual appears as required; or 4. Removal. If the individual against whom the complaint has been filed is a member of a City board or commission, the City Council may, by majority vote, remove the individual from such board or commission; provided however, that nothing in this section authorizes the City Council to remove the Mayor and /or a Councilmember from his or her office. Section 9. TMC Section 2.95.060 is hereby established to read as follows: 2.95.060 Where to Seek Review A. Cease and Desist Order. If ordered to cease and desist violating this Code of Ethics, an affected party may seek review by writ of review from the King County Superior Court pursuant to RCW 7.16, or other appropriate legal action. B. Public Disclosure. If ordered to disclose any documents or papers pursuant to this Code of Ethics, an affected party may seek review by writ of review from the King County Superior Court pursuant to RCW 7.16, or other appropriate legal action. C. Civil Penalty. If ordered to pay a civil penalty, an appeal may be taken in the form of a trial de novo in the Tukwila Municipal Court, which shall hear the case according to the Civil Rules for Courts of Limited Jurisdiction and applicable local rules of the Tukwila Municipal Court. This appeal shall be taken by filing in the Tukwila Municipal Court a notice of appeal within 14 days of the date of the final written order. The person filing the appeal shall also, within the same 14 days, serve a copy of the notice of appeal on the person who issued the final written order and the City Attorney, or his /her designee, and file an acknowledgment or affidavit of service in the Tukwila Municipal Court. D. Discipline or Removal. If an employee or officer is disciplined or removed from office, then the person disciplined or removed from office may seek whatever remedies may be available at law or in equity. E. Exclusion from Public Bidding. If ordered to be excluded from bidding on public contracts and the exclusion actually occurs, the person excluded may seek whatever remedies exist at law or in equity. F. Termination of Contract(s). If termination of contract(s) is ordered, the person whose contract(s) was /were terminated may seek whatever remedies exist at law or in equity. Section 10. Corrections by City Clerk or Code Reviser. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and section /subsection numbering. W: Word Processing \Ordinances \Code of Ethics - Option 2 strike -thru 10 -30 -13 SK:bjs 122 Page 11 of 12 Section 11. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 12. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force five days after passage and publication as provided by law. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of , 2013. ATTEST /AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk APPROVED AS TO FORM BY: Office of the City Attorney Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: W: Word Processing \Ordinances \Code of Ethics - Option 2 strike -thru 10 -30 -13 SK:bjs Page 12 of 12 123 124 TO: City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM Mayor Haggerton Finance and Safety Committee FROM: Shelley Kerslake, City Attorney DATE: October 30, 2013 SUBJECT: Amendments to Tukwila Municipal Code 2.95 — Code of Ethics Option 3. Appointed 5 Member Board — Rigorous Standards for Appointment — Adjudication of Complaints by the Board. At the Finance and Safety Committee meeting of October 22, 2013, the Committee reviewed an ordinance amending the City's Ethics Code which included the creation of an ethics Board which would receive ethics complaints and make an initial determination regarding sufficiency of the complaint. After review, the Committee requested that three separate ordinances be created for consideration: (1) Creation of an Ethics Board comprised of the chairs of the City's current commissions who would render a sufficiency determination, cause and investigation to occur and forward the matter to the City Council for adjudication of the complaint; (2) Creation of an Ethics Board comprised of the chairs of the City's current commissions who would render a sufficiency determination and adjudicate the complaint and (3) Creation of an Ethics Board appointed by the Mayor and Council, with rigorous qualifications. This Board would render a sufficiency determination and adjudicate the complaint. The ordinance attached to this memo represents Option 3. In this ordinance an Ethics Board is created and the membership is appointed by the Mayor and Council. There are rigorous standards for board member qualification. There is also a provision which allows for non- resident appointment under certain circumstances. Under this model, the Board will make an initial determination of complaint sufficiency. If the complaint is found to be initially sufficient, the Board will cause an investigation to be completed. The investigator will make findings, conclusions and a recommendation. Upon receipt of the investigation, the Board will determine that a violation of the ethics code did not occur; that it needs more information to make a determination and hold a hearing which is limited in scope; or determine that a violation occurred. The Board will draft a recommendation to the Council related to the recommended disposition. This process will apply to all elected officials and appointed board and commission members. ATTACHMENTS Ordinance — Ethics Code — Option 3 125 1 26 D'AFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, REPEALING ORDINANCE NOS. 2127 AND 2068, AS CODIFIED IN TUKWILA MUNICIPAL CODE CHAPTER 2.95, "CODE OF ETHICS;" ADOPTING A NEW TUKWILA MUNICIPAL CODE CHAPTER 2.95, "CODE OF ETHICS;" PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the City adopted a Code of Ethics by Ordinance No. 2068 on November 15, 2004 and amended the same by Ordinance No. 2127 on August 7, 2006; and WHEREAS, the City Council desires to repeal the current Code of Ethics codified in Tukwila Municipal Code Chapter 2.95 and enact a new Tukwila Municipal Code Chapter 2.95 to address issues related to elected officials and to provide for a Board of Ethics; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Repealer. Ordinance Nos. 2127 and 2068, as codified in Tukwila Municipal Code (TMC) Chapter 2.95, "Code of Ethics," are hereby repealed in their entirety. Section 2. New TMC Chapter 2.95, "Code of Ethics," Adopted. A new Tukwila Municipal Code Chapter 2.95, "Code of Ethics," is hereby adopted to read as follows: CHAPTER 2.95 CODE OF ETHICS Sections: 2.95.010 Purpose 2.95.020 Definitions 2.95.030 Prohibited Conduct 2.95.040 Board of Ethics 2.95.0450 Complaint Process 2.95.050 Penalties for Noncompliance 2.95.060 Where to Seek Review W: Word Processing \Ordinances \Code of Ethics - Option 3 strike -thru 10 -31 -13 SK:bjs Page 1 of 12 127 1 Section 3. TMC Section 2.95.010 is hereby established to read as follows: 2.95.010 Purpose A. It is the policy of the City of Tukwila to uphold, promote and demand the highest standard of ethics from all of its employees and officials, whether elected, appointed or hired. City officers and employees shall maintain the utmost standards of personal integrity, truthfulness, honesty and fairness in carrying out their public duties; they shall avoid any improprieties in their roles as public servants, including the appearance of impropriety; and they shall never use their City positions or powers for improper personal gain. B. It is the intention of the City Council that TMC Chapter 2.95 be liberally interpreted to accomplish its purpose of protecting the public against decisions that are affected by undue influence, conflicts of interest, or any other violation of this Code of Ethics. In interpreting TMC Chapter 2.95, City officers and employees should be guided by common sense and practicality. This Code of Ethics is supplemental to Washington State law, RCW 42.23. Section 4. TMC Section 2.95.020 is hereby established to read as follows: 2.95.020 Definitions As used in TMC Chapter 2.95, these words shall have the following meanings, unless the context clearly indicates otherwise: 1. `Appearance of impropriety" refers to a situation which to a reasonable person without knowledge of the specific circumstances might seem to raise ethical issues. An example of such conduct could be when a person regularly and reliably collects money for his or her employer in his or her personal wallet and later gives it to his or her employer. By putting it in his or her personal wallet, it may look improper and give rise to suspicion. 2. `Adverse to the interests of the City" means taking action which could damage or prejudice the interests of the City or its citizens. 34. "Business" means any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, consultant, holding company, joint stock company, receivership, trust, or any legal entity organized for profit. 42. "City officer or employee" means every individual elected, appointed, hired, or otherwise selected to an office or position with the City, or any subdivision thereof, whether such individual is paid or unpaid. 53. "Compensation" means payment in any form, for real or personal property or services of any kind. W: Word Processing \Ordinances \Code of Ethics - Option 3 strike -thru 10 -31 -13 SK:bjs Page 2 of 12 129 130 64. "Gift" means a voluntary transfer of real or personal property of any kind, or the voluntary rendition of services of any kind, without consideration of equal or greater value, but not including any reasonable hosting, including travel expenses, entertainment, meals, or refreshments expenses incurred furnished in connection with appearances, ceremonies, and occasions reasonably related to official City business, where otherwise permitted by law. 76. "Hearing Examiner" shall mean the duly appointed and qualified Hearing Examiner for the City of Tukwila, or his /her designee. 86. "Immediate family" shall mean spouses, dependents, anyone residing in the person's household, and anyone within three generations by blood or marriage of the person or the person's spouse; le.g., within three degrees of relationship by blood or marriage,. 97. "Person" means any individual, e- corporation, business or other entity, however constituted, organized or designated. Section 5. TMC Section 2.95.030 is hereby established to read as follows: 2.95.030 Prohibited Conduct The following shall constitute violations of this Code of Ethics: 1. General Prohibition Against Conflicts of Interest. In order to avoid becoming involved or implicated in a conflict of interest or impropriety, or conflict of interest or impropriety, no current City officer or employee should be involved in any activity that might be seen as conflicting with the conduct of official City business or as adverse to the interests of the City. Even the appearance of the conduct prohibited in TMC Section 2.95.030 alone may be sufficient to constitute a violation of this Code of Ethics. an appearance of 2. Beneficial Interests in Contracts Prohibited. No City officer or employee shall participate in his /her capacity as a City officer or employee in the making of a contract in which she /he has a financial interest, direct or indirect. This shall include any contract for sale, lease or purchase, with or for the use of the City, or the acceptance directly or indirectly of any compensation, gratuity or reward from any other person beneficially interested therein. Except, that this prohibition shall not apply where the City officer or employee has only a remote interest in the contract, and where the fact and extent of such interest is disclosed and noted in the official minutes or similar records of the City prior to formation of the contract, and thereafter the governing body authorizes, approves or ratifies the contract in good faith, by a vote of its membership sufficient for the purpose without counting the vote(s) of the officer(s) having the remote interest. For purposes of TMC Chapter 2.95, a "remote interest" means: a. That of a non - salaried officer of a nonprofit corporation; b. That of an employee or agent of a contracting party where the compensation of such employee or agent consists entirely of fixed wages or salary; W: Word Processing \Ordinances \Code of Ethics - Option 3 strike -thru 10 -31 -13 SK:bjs Page 3 of 12 131 I c. That of a landlord or tenant of a contracting party; or d. That of a holder of less than one percent of the shares of a corporation, a limited liability company, or other entity, which is a contracting party. 3. Beneficial Influence in Contract Selection Prohibited. No City officer or employee shall influence the City's selection of, or its conduct of business with, a corporation, person or firm having or proposing to do business with the City, if the City officer or employee has a financial interest in or with the corporation, person or firm, unless such interest is a remote interest and where the fact and extent of such interest is disclosed and noted in the official minutes or similar records of the City prior to formation of the contract„ t 4. Representation of Private Person at City Proceeding Prohibited. No City officer or employee shall appear on behalf of a private person, other than him /herself or an immediate family member, or except as a witness under subpoena, before any regulatory governmental agency or court of law in an action or proceeding to which the City or a City officer in an official capacity is a party, or accept a retainer or compensation that is contingent upon a specific action by the City. This provision shall not preclude an employee from exercising rights protected by the Public Employees Collective Bargaining Act, including the right to appear and /or testify in a legal proceeding on behalf of a labor organization representing employees or seeking to represent employees of the City. 5. Certain Private Employment Prohibited. No City officer or employee shall engage in or accept private employment from — or render services for — any private interest, when such employment or service is incompatible with the proper discharge of official duties or would tend to impair independence of judgment or action in the performance of official duties. This provision shall not interfere with an employee's right to engage in off duty employment that is authorized pursuant to a collective bargaining agreement and /or Tukwila Police Department General Orders. 6. Beneficial Interest in Legislation Prohibited. No City officer or employee, in appearing before the City Council or when giving an official opinion before the City Council, shall have a financial interest in any legislation coming before the City Council or participate in discussion with or give an official opinion to the City Council, unless such interest is a remote interest and where the fact and extent of such interest is disclosed and noted on the record of the Council or similar records of the City, prior to consideration of the legislation by the City Council. 7. Disclosure of Confidential Information Prohibited. No City officer or employee shall disclose or use any confidential, privileged or proprietary information, gained by reason of his /her official position, for a purpose which is other than a City purpose; provided, that nothing shall prohibit the disclosure or use of information which is a matter of public knowledge, or which is available to the public upon request. This provision shall not preclude an employee from exercising rights protected by the Public Employees Collective Bargaining Act, including the right of a labor organization to utilize and disclose properly obtained information that the City deems confidential, privileged, or proprietary. W: Word Processing \Ordinances \Code of Ethics - Option 3 strike -thru 10 -31 -13 SK:bjs Page 4 of 12 133 8. Improper Use of Position Prohibited. No City officer or employee shall knowingly use his /her office or position to secure personal benefit, gain or profit, or use his /her position to secure special privileges or exceptions for him /herself, or for the benefit, gain or profit of any other persons. This provision shall not preclude an employee from exercising rights protected by the Public Employees Collective Bargaining Act, including the right to negotiate agreements that address the wages, hours, and working conditions of employees of the City. 9. Improper Use of City Personnel Prohibited. No City officer or employee shall employ or use any person under the officer's or employee's official control or direction for the personal benefit, gain or profit of the officer or employee, or another. This section does not apply to off -duty employment relationships, which are mutually negotiated. 10. Improper Use of City Property Prohibited. No City officer or employee shall use City owned vehicles, equipment, materials, money or property for personal or private convenience or profit. Use is restricted to such services as are available to the public generally, for the authorized conduct of official City business, and for such purposes and under such conditions as are approved by administrative order of the Mayor; provided, the use of a City vehicle by a City officer or employee participating in a carpooling program established by the City, and for a purpose authorized under such program, shall not be considered a violation of TMC Chapter 2.95 or of any other provision of the TMC Tukwila Municipal Code. 11. Acceptance of Compensation, Gifts, Favors, Rewards or Gratuity Prohibited. No City officer or employee may, directly or indirectly, give or receive, or agree to give or receive, any compensation, gift, favor, reward or gratuity, for a matter connected with or related to the officer's or employee's services with the City of Tukwila; except this prohibition shall not apply to: a. Attendance of a City officer or employee at a hosted meal when it is provided in conjunction with a meeting directly related to the conduct of City business, or where official attendance by the officer or employee as a City representative is appropriate; b. An award publicly presented in recognition of public service; or c. Any gift valued at $100.00 or less, which cannot reasonably be presumed to influence the vote, action or judgment of the officer or employee, or be considered as part of a reward for action or inaction. -; or d. An employee serving as a representative of a labor organization and /or an employee receiving compensation, gifts, or rewards from a labor organization of which he /she is a member. 12. Impermissible Conduct After Leaving City Service. a. Disclosure of Privileged, Confidential, or Proprietary Information Prohibited. No former officer or employee shall disclose or use any privileged, confidential or proprietary information gained because of his /her City employment. W: Word Processing \Ordinances \Code of Ethics - Option 3 strike -thru 10 -31 -13 SK:bjs 134 Page 5 of 12 b. Participation in City Matters Prohibited. No former officer or employee shall, during the period of one year after leaving City office or employment: 1. Assist any person in matters involving the City if, while in the course of duty with the City, the former officer or employee was officially involved in the matter, or personally and substantially participated in the matter, or acted on the matter; 2. Represent any person as an advocate in any matter in which the former officer or employee was involved while a City officer or employee; or 3. Participate as or with a bidder, vendor or consultant in any competitive selection process for a City contract in which s /he assisted the City in determining the project or work to be done, or the process to be used. c. Duty to Inform. Whenever a City officer or employee wishes to contract with a former City officer or employee for expert or consultant services within one year of the Tatter's leaving City service, advance notice shall be given to the Mayor about the proposed agreement. d. Exceptions. The prohibitions of TMC subsections 2.95.030(12)(b)(1) and (2), shall not apply to a former officer or employee acting on behalf of a governmental agency, unless such assistance or representation is adverse to the interest of the City. Section 6. TMC Section 2.95.040 is hereby established to read as follows: 2.95.040 Board of Ethics A. There is created a Board of Ethics for the City of Tukwila. The purpose of this Board of Ethics is to review ethics complaints for an initial determination of sufficiency before an investigation is initiated, adjudicate ethics complaints against elected and appointed officials and provide advisory opinions for elected officials, when requested. B. The Board of Ethics shall be composed of five members, two to be appointed by the Mayor and three to be appointed by the City Council. The terms of the Board members shall be three years. The first three members shall be appointed for one, two and three year terms respectively. C. Board member qualifications. Board members should be selected on the basis of their concern for the welfare of the City, their interest in ethical matters, and their reputation in the community and among their peers for integrity and mature judgment. Experience in adjudication and /or ethics review is preferred. In filling a vacancy or making a nomination for membership on the Board of Ethics, the Mayor and Council shall strive to select persons with diverse perspectives and areas of expertise appropriate to the review of ethical matters. For proposed nominees who are nonresidents, the Mayor or Council shall state the reasons that contributed to the decision to nominate a nonresident, including, but not limited to, particular expertise of the person to review ethics matters and /or a desire to have a person or persons serve on the Board who, as a nonresident, is less likely to have some personal, social or business relationship with whomever may be the subject of an ethics complaint. W: Word Processing \Ordinances \Code of Ethics - Option 3 strike -thru 10 -31 -13 SK:bjs Page 6 of 12 135 D. The Chair of the Board shall be elected by the Board members and shall serve as Chair for one year, at which time a new election shall occur. E. A majority of the Board of Ethics shall constitute a quorum. The Board shall meet as frequently as it deems necessary and in accordance with the provisions of the Tukwila Municipal Code. The Board shall adopt procedures consistent with the provisions of the Tukwila Municipal Code governing the conduct of its meetings. The Board shall be supported by outside counsel if the complaint is against an elected official and by the City Attorney's Office if the complaint is against an employee. F. The powers of the Ethics Board include rendering sufficiency determinations as described in TMC Section 2.95.045, adjudicating ethics complaints against elected and appointed officials and responding to requests from City- elected officials for advisory opinions regarding the application of the Code of Ethics to the prospective conduct of such person. Section 7. TMC Section 2.95.045 is hereby established to read as follows: 2.95.0450 Complaint Process A. A complaint that this Code of Ethics has been violated may be filed with any one of the following officers, or his /her designee(s): 1. Mayor -er 2. City Attorney 3. City Clerk, B. No person shall knowingly file a false complaint or report of violation of this Code of Ethics. C. Any individual receiving a complaint that this Code of Ethics has been violated has an obligation to promptly forward the complaint, in writing, to the Mayor.to the Board of Ethics for a sufficiency determination. After reviewing the complaint, the Board may take any of the following actions and inform the complainant, the respondent and the City Attorney or Mayor, as appropriate: 1. Determine that the facts stated in the complaint, even if true, would not constitute a violation of the Code of Ethics. 2. Determine that the facts stated in the complaint, even if true, would not constitute a material violation of the Code of Ethics because any potential violation was inadvertent or minor or has been adequately cured, such that further proceedings on the complaint would not serve the purposes of the Code of Ethics. 3. Make a preliminary determination that the facts stated in the complaint, if true, could potentially constitute a violation of the Code of Ethics such that further proceedings are warranted. W: Word Processing \Ordinances \Code of Ethics - Option 3 strike -thru 10 -31 -13 SK:bjs 136 Page 7 of 12 D. The Board shall submit a written report with its findings within 10 days of its receipt of the written complaint. The Board's determination of sufficiency is final and binding and no appeal is available. If the Board finds the complaint sufficient, then the complaint shall be investigated as set forth below. E. For all sufficient complaints, the City Attorney_The Mayor shall promptly designate an individual to conduct an investigation of the complaint. However, if the complaint DF. Upon receipt of a complaint regarding an elected official or an appointed member of a board or commission, the City Attorney shall forward a confidential memorandum to all Councilmembers informing them that a complaint has been made. €G. The individual designated to conduct the investigation shall notify the subject of the complaint that a complaint has been made. The designated investigator shall ;then complete the investigation and prepare written findings and conclusions within 60 days of the date the complaint is deemed sufficient received by the Mayor, unless an extension is granted in writing by the Mayor or City Attorney repriate. A copy of the written investigation findings and conclusions shall be provided to the Mayor or City Attorney. as aPPreiariate €H. Within 5 business days of receipt of the investigator's written findings and conclusions, the Mayor-Of-City Attorney, as appropriate, shall forward a copy of the investigation to the Department Head or Mayor, as appropriate, if the complaint is against an employee and to the Chair of the Ethics Board if the complaint is against an elected official or appointed board or commission member. disposition of the complaint. Copies of the recommended disposition and investigation findings and conclusions shall be forwarded by certified mail to the complaining party and the party complained against at their last known addresses. Additional copies of the disposition. requesting a formal hearing, pursuant to TMC 2.95.0,10(H), has lapsed and no such I. When the complaint is against an elected official or appointed board or commission member, the investigative findings and conclusions as discussed in TMC Section 2.95.0450(FH), as well as the recommended disposition, shall be forwarded to the Chair of the Ethics Board. Within 10 business days of receipt of the investigator's report, the Board shall convene and review the complaint, findings, conclusions and recommended disposition. As soon as practicable after giving due consideration to the complaint, the Board shall take any action or combination of actions which it deems appropriate and for which it is lawfully empowered to take including, but not limited to, the following: placed on the next regularly scheduled Council meeting agenda, for informational purposes only. W: Word Processing \Ordinances \Code of Ethics - Option 3 strike -thru 10 -31 -13 SK:bjs Page 8 of 12 137 1. Determine that no violation of the Code of Ethics has occurred. 2. Determine that a violation of the Code of Ethics has occurred. 3. If the Board determines that it needs more information to make a determination as to whether the Code of Ethics has been violated, it may convene a hearing to take such additional evidence as required by the Board. The scope of evidence requested by the Board should be strictly construed. At such hearing, the Board may call additional witnesses or consider additional documentary evidence. After final deliberations on the investigator's findings, as well as any additional testimony, statements, or documents presented at the hearing, the Board shall determine whether or not a violation of the Code of Ethics has occurred. 4. After the Board has made its final determination under TMC Section 2.95.045, subsection I, (1), (2) or (3), the Board shall issue its written findings of fact and conclusions of law, along with its recommended disposition, if applicable. The Board's conclusions shall be based on the preponderance of evidence standard. The Board may recommend and the City Council may impose upon any elected or appointed official the penalties set forth in TMC Section 2.95.050. 5. Copies of the written findings of fact, conclusions and recommended disposition of the Board shall be forwarded by certified mail to the complaining party and the party complained against at their last known addresses. Additional copies shall be forwarded to the investigator, the City Attorney (or independent legal counsel), and the City Council for matters involving a City - elected official, a commission member or board member. J. Ex Parte Communications. After a complaint has been filed and during the pendency of a complaint before the Board, no member of the Board may communicate directly or indirectly with any party or other person about any issue or fact or law regarding the complaint, except that members of the Board may obtain legal advice with the assigned independent outside counsel. MK. The party complained against may, within 10 business days following the date of athe recommended disposition hich that finds a violation of this Code of Ethics, request in writing a formal hearing before the Hearing Examiner. A request for a formal hearing shall be in writing. Except for good cause shown, the hearing shall be scheduled to take place not sooner than 20 days nor later than 60 days from the date the appeal is filed. IL. Within 30 days after the conclusion of the- -a formal hearing, the Hearing Examiner shall, based upon a preponderance of the evidence, prepare findings of fact, conclusions of law, and his /her order. Copies of the Hearing Examiner's findings, conclusions and order shall be forwarded by certified mail to the complaining party and the party complained against at their last known addresses. Additional copies of the findings, conclusions and order shall be forwarded to the investigator, the City Attorney or the City Attorney's designee, and the person(s) responsible for acting on the Hearing Examiner's order. In the case of a complaint against an elected official or appointed board or commission member, the Hearing Examiner's findings wilt- -shall be forwarded to the City Council and placed on the next regularly scheduled Council meeting agenda, for W: Word Processing \Ordinances \Code of Ethics - Option 3 strike -thru 10 -31 -13 SK:bjs 138 Page 9 of 12 informational purposes only. Section 8. TMC Section 2.95.050 is hereby established to read as follows: 2.95.050 Penalties for Noncompliance A. Any person, other than an employee covered by a collective bargaining agreement, found by a preponderance of the evidence to have violated any provision of this Code of Ethics, may be subject to any or a combination of the following penalties: 1. A cease and desist order as to violations of this Code of Ethics; 2. An order to disclose any reports or other documents or information requested_ 3. An order to pay to the City a civil penalty of up to $1,000.00, where it is determined disciplinary measures are not appropriate under the circumstances; 4. Discipline, up to and including termination or removal from any position whether paid or unpaid, excluding elected positions, only after notice and hearing as provided by law. The pre - disciplinary procedures set forth in the provisions of the Tukwila Municipal Code and applicable personnel policies shall be followed for regular City employees_ in the Classified City Service; 5. Exclusion from bidding on City contracts for a period of up to 5 years; and /or 6. Termination or invalidation of contract(s) entered into in violation of the Code of Ethics, only if such contract(s) provide for termination in the event of a Code of Ethics violation. B. Any allegation that an employee who is covered by a collective bargaining agreement has violated any provision of this Code of Ethics shall be investigated in accordance with the applicable collective bargaining agreement and Department Policies, Procedures, or General Orders. For any proven violation of this Code of Ethics, an employee may be disciplined up to and including termination in accordance with the applicable collective bargaining agreement. Any such discipline may be appealed in accordance with the applicable collective bargaining agreement or Civil Service Rules. C. If the complaint is against an elected or appointed official, the Council may take any of the following actions by a majority vote of the Council: 1. Admonition. An admonition shall be a verbal non - public statement made by the Council President, or his or her designee, to the individual. The action of the Council shall be final and not subject to further review; 2. Reprimand. A reprimand shall be administered to the individual by letter. The letter shall be prepared by the Council. The action of the Council shall be final and not subject to further review;- W: Word Processing \Ordinances \Code of Ethics - Option 3 strike -thru 10 -31 -13 SK:bjs Page 10 of 12 139 3. Censure. A censure shall be a written statement administered personally to the individual. The individual shall appear at a time and place directed by the Council to receive such censure. Notice shall be given at least 20 days before the scheduled appearance at which time a copy of the proposed censure shall be provided to the individual. Within 5 days of receipt of the notice, the individual may file a request for review of the content of the proposed censure with the City Council. Such a request will stay the administration of the censure. The City Council shall review the proposed censure in light of the investigator's recommendation and the request for review, and may take whatever action appears appropriate under the circumstances. The action of the Council shall be final and not subject to further review. If no such request is received, the censure shall be administered at the time and place set. It shall be given publicly, and the individual shall not make any statement in support of or in opposition to or in mitigation thereof. A censure shall be deemed administered at the time it is scheduled whether or not the individual appears as required; or 4. Removal. If the individual against whom the complaint has been filed is a member of a City board or commission, the City Council may, by majority vote, remove the individual from such board or commission; provided however, that nothing in this section authorizes the City Council to remove the Mayor and /or a Councilmember from his or her office. Section 9. TMC Section 2.95.060 is hereby established to read as follows: 2.95.060 Where to Seek Review A. Cease and Desist Order. If ordered to cease and desist violating this Code of Ethics, an affected party may seek review by writ of review from the King County Superior Court pursuant to RCW 7.16, or other appropriate legal action. B. Public Disclosure. If ordered to disclose any documents or papers pursuant to this Code of Ethics, an affected party may seek review by writ of review from the King County Superior Court pursuant to RCW 7.16, or other appropriate legal action. C. Civil Penalty. If ordered to pay a civil penalty, an appeal may be taken in the form of a trial de novo in the Tukwila Municipal Court, which shall hear the case according to the Civil Rules for Courts of Limited Jurisdiction and applicable local rules of the Tukwila Municipal Court. This appeal shall be taken by filing in the Tukwila Municipal Court a notice of appeal within 14 days of the date of the final written order. The person filing the appeal shall also, within the same 14 days, serve a copy of the notice of appeal on the person who issued the final written order and the City Attorney, or his /her designee, and file an acknowledgment or affidavit of service in the Tukwila Municipal Court. D. Discipline or Removal. If an employee or officer is disciplined or removed from office, then the person disciplined or removed from office may seek whatever remedies may be available at law or in equity. E. Exclusion from Public Bidding. If ordered to be excluded from bidding on public contracts and the exclusion actually occurs, the person excluded may seek whatever remedies exist at law or in equity. W: Word Processing \Ordinances \Code of Ethics - Option 3 strike -thru 10 -31 -13 SK:bjs 140 Page 11 of 12 F. Termination of Contract(s). If termination of contract(s) is ordered, the person whose contract(s) was /were terminated may seek whatever remedies exist at law or in equity. Section 10. Corrections by City Clerk or Code Reviser. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and section /subsection numbering. Section 11. Severability. If any section, subsection, paragraph, sentence, clause or phrase of this ordinance or its application to any person or situation should be held to be invalid or unconstitutional for any reason by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or its application to any other person or situation. Section 12. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force five days after passage and publication as provided by law. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of , 2013. ATTEST /AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk APPROVED AS TO FORM BY: Office of the City Attorney Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: W: Word Processing \Ordinances \Code of Ethics - Option 3 strike -thru 10 -31 -13 SK:bjs Page 12 of 12 141