ETHICS AND LOBBYING ACTIVITIES

Transcription

1 ETHICS AND LOBBYING ACTIVITIES This Code of Ethics was adopted by the Board of Supervisors as Ordinance No. NS on September 23, 1997, amending Division A-3 to the Ordinance Code of the County of Santa Clara establishing ethical standards for the Board of Supervisors relating to election campaigns, conflict of interest, incompatible activities, conduct in office, leaving office, lobbying and enforcement. DIVISION A-3 ETHICAL STANDARDS FOR THE BOARD OF SUPERVISORS Table of Contents CHAPTER I. PURPOSE AND RULES OF INTERPRETATION Page Sec. A3-1 Purpose of the Code of Ethics A-211 Sec. A3-2 Responsibilities of Public Office A-211 Sec. A3-3 Rules of Interpretation A-211 Sec. A3-4 Distribution of Rules A-212 Sec. A3-5 through 9 (Reserved) A-212 CHAPTER II. RESERVED (Sec. A3-10 through 29) A-213 CHAPTER III. CONFLICT OF INTEREST Sec. A3-30 Personal Conflicts A-215 Sec. A3-31 Financial Conflicts A-215 Sec. A3-32 Special Rules for Interests in Contracts A-216 Sec. A3-33 Prohibition Against Acceptance of Discounted Travel A-216 Sec. A3-34 through 39 (Reserved) A-216 CHAPTER IV. INCOMPATIBLE ACTIVITIES Sec. A3-40 Incompatible Office A-217 Sec. A3-41 Incompatible Activities for Compensation A-217 Sec. A3-42 Incompatible Uncompensated Activities A-217 Sec. A3-43 through 49 (Reserved) A-217 CHAPTER V. USE OF OFFICE A - 1

2 Sec. A3-50 Prohibitions Against Use of Office for Personal or Campaign Purposes A-219 Sec. A3-51 No Disclosure of Confidential Information A-219 Sec. A3-52 through 59 (Reserved) A-219 CHAPTER VI. Sec. A3-60 CHAPTER VII. LEAVING OFFICE Revolving Door Employee Prohibitions are Applicable to Board Members A-221 LOBBYING Sec. A3-61 Declaration of Lobbying Activity A-223 Sec. A3-62 Exceptions A-223 Sec. A3-63 Procedures for Declaring A-223 Sec. A3-64 Enforcement A-223 Sec. A3-65 Enforcement Proceedings A-224 CHAPTER VIII. ENFORCEMENT Sec. A3-70 Ethics Commission A-225 Sec. A3-71 Enforcement Proceedings A-225 Sec. A3-72 Civil Sanctions/Penalties A-226 Sec. A3-73 Criminal Penalty A-226 A - 2

3 CHAPTER I. PURPOSE AND RULES OF INTERPRETATION Section A3-1 - Purpose of the Code of Ethics The proper operation of democratic government requires that elected officials be responsible to the people; that public office not be improperly influenced or used for personal gain; and that the public have confidence in the integrity of its government. In recognition of these goals, there is hereby established a Code of Ethics for the Board of Supervisors. The purpose of this Code of Ethics is to describe in one code existing ethics laws and to establish ethical standards of conduct for the Board of Supervisors. These new standards provide more stringent limits on: (1) campaign contributions, (2) actions that are in conflict or incompatible with the best interests of the County, and (3) the use of the office for personal gain. The provisions of this Code of Ethics are hereby declared to be in the best interest of the County and for the protection of the public interest. Section A3-2 - Responsibilities of Public Office Board members hold office for the benefit of the public. They are bound to uphold the Constitution of the United States and California, the County Charter, and to carry out impartially the laws of the nation, state and the county. They are bound to observe the highest standards of performance and to discharge faithfully the duties of their office, regardless of personal considerations. The purposes of Chapters III - VI of this Code of Ethics are to assure that: (1) Board members exercise their official powers in pursuit of the public interest without regard to personal interest, and (2) Board offices not be used for private gain before, during or following holding the office. Section A3-3 - Rules of Interpretation (C) This Code of Ethics shall be construed broadly in order to effectuate its purposes. To the extent practicable, the words and phrases used in this Code of Ethics shall be interpreted consistent with their meaning under existing general California law, including the Political Reform Act of 1974, as amended, and regulations of the Fair Political Practices Commission. To the extent that the provisions of this Division are more stringent than existing general California law or regulations, the more stringent provisions control. To the extent that the limitations and requirements imposed by this Code of Ethics are different from those set forth in general California ethics laws or regulations, they shall be applied and interpreted so as to be no less stringent than those laws or regulations. A - 3

4 Section A3-4 -Distribution of Rules Each candidate and campaign treasurer shall be provided a copy of this Code at the time he or she files a declaration of candidacy. Each shall sign an acknowledgment that he or she has read and understood the Code and agrees to be bound by its terms. Sections A3-5 through 9. (Reserved.) A - 4

5 CHAPTER II. (RESERVED) A - 5

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7 Section A Personal Conflicts CHAPTER III. CONFLICT OF INTEREST No Board member shall participate in a governmental decision in which he or she has a close personal interest which would tend to impair the exercise of independent judgment in the public interest. Personal, as distinguished from financial, interests shall include interests arising from blood or marriage relationships or very close personal associations which would constitute a conflict of interest under the common law. The purpose of this section is to disqualify Board members from participating in decisions in which there would be a conflict of interest under the common law. Section A Financial Conflicts (Restatement of Existing State Law) (C) All aspects of conflict of interest provisions of the Political Reform Act of 1974 as amended, including disclosure, disqualification standards, limitations on gifts, and enforcement are applicable to Board members. The following provisions are intended to summarize provisions of the Act; and care must be taken to consult the extensive body of general California law which governs financial conflicts. Existing general California law, the Political Reform Act of 1974, prohibits Board members from making, participating in making, or attempting in any way to use an official position to influence a governmental decision in which the member knows or has reason to know he or she has a financial interest. The Political Reform Act disqualifies an official from participating in a governmental decision which affects the economic interest of a Board member generally as set forth below. (1) The decision affects the member's personal financial status, or that of his or her spouse or dependent children. (2) The decision affects a business entity located in, doing business in, owning real property in, or planning to do business in the county, in which the member, or his or her spouse or dependent child has an investment of $1,000 or more. (3) The decision affects real estate (real property) located in the county and the member, or his or her spouse or dependent child, has an interest of $1,000 or more in that real estate. (4) The decision affects a person, business entity, or nonprofit entity from whom the member has received gifts of $250 or more in the past 12 months. A - 7

8 (5) The decision affects a business entity, other than a nonprofit organization, in which the member is a director, officer, partner, trustee, employee or holds a position of management. (6) The decision affects a person, business entity, or non-profit entity located in, doing business in, owning real property in, or planning to do business in the county, from which the member has received income of $250 or more, or the member's spouse has received income of $500 or more, in the past 12 months. Section A Special Rules for Interests in Contracts (Restatement of Existing State Law) Existing general California law, Government Code Section 1090 et seq., prohibits a Board member from having a financial interest in any business transaction, or contract with the County, or in the sale of real estate, materials, supplies or services to the County, except as permitted by Government Code Section 1091, et seq. Such contracts are void under State law, and may result in a forfeiture of the financial benefits of the contract. Section A Prohibition Against Acceptance of Discounted Travel (Restatement of Existing California Law) (C) The California Constitution, Article XII, Section 7 states: A transportation company may not grant free passes or discounts to anyone holding an office in this state; and the acceptance of a pass or discount by a public officer shall work a forfeiture of that office The phrase transportation company as used in the Constitutional prohibition includes a public utility regulated by the Public Utilities Commission. It may also include a transportation company subject to regulation by a Federal agency. The Attorney General concluded in a 1984 opinion that the Constitutional provision does not prohibit a member from accepting a free or discounted travel pass when such passes are offered on the same conditions to a segment of the public. (67 Ops. Cal. Atty. Gen. 81.) Sections A (Reserved.) A - 8

9 CHAPTER IV. INCOMPATIBLE ACTIVITIES Section A3-40 -Incompatible Office (Restatement of Existing California Law) Under existing California common law, no Board member may hold another public office where the two offices are incompatible. Taking an incompatible second public office results in the automatic forfeiture of the first office. (66 Ops. Cal. Atty. Gen. 176 (1983).) Section A3-41 -Incompatible Activities for Compensation (C) A Board member shall not participate in outside employment or render services for compensation when to do so would substantially interfere with the member's ability to carry out official duties or exercise independent judgment on behalf of the public interest. A Board member shall not be engaged in outside employment or render services for compensation where the amount of time expended in such engagement exceeds an average of one day per week. A Board member shall not be engaged in outside employment or provide services for compensation where any part of the Board member's effort will be subject to approval by the Board of Supervisors or any other County board, officer or employee. Section A3-42 -Incompatible Uncompensated Activities Board members may participate in outside activities for which they are not compensated, but are discouraged from participating in such non-compensated activities which: (1) involve a substantial commitment of time that interferes with the Board member's ability to timely discharge his or her official duties; or (2) involve matters which come regularly before the Board and would create a substantial conflict between the private interests and the exercise of Board authority in the public interest. A Board member may disqualify himself or herself in matters coming before the Board where the Board member concludes that participation would create the appearance of a conflict of interest. Sections A (Reserved.) A - 9

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11 CHAPTER V. USE OF OFFICE Section A Prohibitions Against Use of Office for Personal or Campaign Purposes (C) (D) Existing California law prohibits the use of public resources for personal gain. Existing California law prohibits the use of public resources to advocate the passage or defeat of any candidate or measure. Existing California law restricts the use of mass mailings by public officials. In addition to the foregoing prohibitions, it is a violation of this chapter for any Board member to: (1) Use, for personal gain or advantage, county facilities, equipment, supplies, personnel, or other things of value; or (2) Use the office to secure, for personal benefit, gifts, special privileges or exemptions. Section A No Disclosure of Confidential Information Board members shall not use for personal gain confidential information acquired by or available to them in the course of their employment with the county. Board members shall not reveal information received confidentially or in lawful closed session, unless such information is required by law to be disclosed. Sections A (Reserved.) A - 11

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13 CHAPTER VI. LEAVING OFFICE Section A Revolving Door Employee Prohibitions are Applicable to Board Members A Board member is a county employee within the meaning of the revolving door ordinance (Chapter X of Division A25 of this Ordinance Code) and is subject to the provisions of that ordinance except as modified in paragraph. Generally, the revolving door ordinance prohibits a former employee from engaging in paid representation ( lobbying ) on any matter within the employee's responsibility for a period of one year after leaving County employment. There is a lifetime ban on lobbying the County on matters in which the employee personally participated. The prohibition on paid lobbying related to matters under a Board member's official responsibility is extended to a period of four years. The lifetime ban on lobbying is inapplicable to Board members. A - 13

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15 CHAPTER VII. LOBBYING The following revisions to the Lobbying Ordinance were adopted and approved by the Board of Supervisors on September 24, Section A Declaration of Lobbying Activity Every person or entity, who has a matter on the agenda of the Board of Supervisors as part of an application for a county contract, permit, license or franchise, shall file a declaration and shall state prior to the appearance on the matter, the names of any individual(s) or firm(s) paid $100 or more to present the position of the applicant to the Board of Supervisors, or to any individual member or members of the Board of Supervisors, or staff of the County of Santa Clara with the ability to make administrative decisions regarding such applications. Any person who is a lobbyist under the terms of this Chapter shall so identify oneself to the Board of Supervisors or the staff of the County of Santa Clara prior to speaking on a matter described in this section. Section A Exceptions If a person who presents the position of the applicant to the Board of Supervisors or to County staff is a full-time employee of the applicant, the provisions contained in this section shall not be applicable. Any applicant whose application for a contract, license or franchise is valued at less than $1,000 shall not be subject to the provisions contained in this section. Section A Procedures for Declaring (C) The declaration required in Section A3-61 shall be made on the Request to Speak Form provided by the Clerk of the Board of Supervisors prior to the discussion of the matter on the Board of Supervisors agenda. The declaration shall include the name of the applicant, the name of the person or entity paid or to be paid to lobby, the date of the payment to lobby, and the amount of the payment for the lobbying activity. The declaration shall be signed under penalty of perjury. An alternative method of filing the declaration required in Section A3-61 shall be to file the declaration form provided by the Clerk of the Board of Supervisors with the Clerk at least 72 hours prior to the Board meeting at which the matter will be discussed. A - 15

16 Section A Enforcement Failure of an applicant to file the declaration, or for a lobbyist to identify oneself as such prior to speaking on a matter, shall result in the inability of the Board of Supervisors to take action to approve the application for contract, permit, grant, license or franchise until such time that the applicant complies with this section. Failure to file the declaration, or to identify oneself as a lobbyist prior to speaking on a matter shall result in the following penalties: (1) A Penalty Assessment to be deposited into the county general fund of $500 per violation of this section. (2) Violations found to be egregious by the Ethics Commission of the County of Santa Clara may subject the violators to liability for civil action by the County for an amount up to two thousand five hundred dollars ($2,500) for each failure to comply. Section A Enforcement Proceedings Any person who believes that a violation of this section has occurred may file a written complaint with the Ethic Commission in the manner provided in Section A3-71 of this code. A - 16

17 Section A Ethics Commission CHAPTER VIII. ENFORCEMENT An Ethics Commission, consisting of seven members, shall be appointed. Five members shall be appointed to terms to coincide with the terms of office of each Board seat. The two at-large members shall be solicited from interested community groups or may be self-nominated, and the presiding judge shall select two individuals from the names of the group submitted to the presiding judge by the Ethics Commission after a review of their qualifications by a subcommittee of the Ethics Commission. The other five commissioners shall be appointed by the Presiding Judge of the Superior Court from a list of three persons nominated by the Board member whose term of office corresponds with the term of the commissioner. There shall be, among the seven commissioners, at least one Commissioner appointed from each Supervisorial district. The Commission may request, subject to approval of the Board of Supervisors, assignment or hiring of personnel to assist the commission in carrying out its duties. The Board shall approve reasonable requests. Section A3-71 -Enforcement Proceedings Any person who believes that a violation of any portion of this Code of Ethics has occurred may file a written complaint with the Ethics Commission. Any such complaint must be filed within two years after the date on which the violation occurred. A copy of any such written complaint shall, at the time such complaint is made, be filed with the county clerk, and a copy shall also be provided to any person alleged to have violated any portion of this chapter. Should the preliminary investigation by the Ethics Commission reveal that there is sufficient basis upon which to proceed with a hearing regarding the alleged violation, the Ethics Commission shall refer the matter to a retired Superior Court Judge, selected by the Commission, to serve as the hearing officer regarding the complaint. The hearing officer shall review the investigation, have the power to obtain additional discovery and testimony, shall have the authority to independently exercise all powers necessary to investigate, subpoena records, and issue orders to facilitate the investigation of complaints. The hearing officer shall conduct a hearing regarding the complaint. The Ethics Commission may attend the hearing as observers. After the conclusion of the hearing, the hearing officer shall make recommendations to the Ethics Commission regarding the disposition of the complaint and any recommended sanctions or penalties to be imposed. The Ethics Commission has the power to ratify the decision of the hearing officer or to reject the decision. Should the decision of the hearing officer be rejected, the complaint must be dismissed. A - 17

18 If the decision of the hearing officer is ratified, and a violation of this Code of Ethics is found, the Ethics Commission may issue such enforcement orders as it deems necessary, including the sanctions set forth below. Section A3-72 -Civil Sanctions/Penalties A person who is found to have violated this Code of Ethics is subject to the following sanctions: (1) Public censure by the Ethics Commission or the Board of Supervisors; (2) An official finding of misconduct in office and removal from office upon an accusation proceeding instituted by the Grand Jury; (3) Forfeiture into the County general fund of any amounts or things of value given or paid in violation of this Division; (4) A penalty assessment to be deposited into the County general fund of up to $500 per violation of this Code or an amount not to exceed three times the amount given, paid or expended in violation of this Division. Section A Criminal Penalty In addition to the civil penalties provided above, a willful violation of this Code is a misdemeanor. Operative Dates The amended provisions of this ordinance shall be operative immediately. A - 18