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HomeMy Public PortalAbout20070924EthicsCommissionMinutes.pdfEthics Commission Minutes September 24, 2007 Members Present: Walker Beeson, Randi Bryan, Fretwell Crider, Danny Hill, Pam O’Brien, Carolyn Smith, Michael Sullivan Ex-Officos Present: Janice Elliott, Recording Clerk Members Absent: Visitors: Fretwell Crider called the meeting to order. Roll was called. Corrections to the minutes: page 2 – standpoint one word, under the by-laws “if it’s in an emergency can happen within 24 hours of notice” was stricken, page 3 – complaint spelling corrected. Carolyn made a motion to approve the minutes as corrected. Michael Sullivan seconded. Minutes were approved as corrected. The Complaint that was received before the last meeting has been withdrawn and will not be considered. Complaint Procedure Discussion Fretwell asked if everyone received his email on the Complaint Procedure. He stated that if the Complaint Policy was not changed then it would allow the first stage of the handling of the compliant to be done in private which violates the open records law. Walker Beeson made a motion to amend the Ethics Commission Policy, Section III and replace it with “Ethics Commission designee communicates the complaint to the Ethics Commission members who assigns complaint to proper authority within 7 business days.” Pam O’Brien seconded the motion. Michael agreed with Walker. He stated that the essence of the argument is correct because to give a private party consideration puts the designee into a drafted position. Pam disagreed because the designee’s only authority at this point is to decide whether it is an employee problem and if it meets the check list of requirements. If the complaint involves a city employee, then the designee sends the complaint to the City Manager. If it doesn’t meet the check list of requirements – did it happen within 6 months, is it in writing, or is it signed – then the designee sends the complaint back to complainant. This is all the designee has to do. If the complaint does not involve a city employee and the requirements are met, then it comes to the Commission. There is no subjectivity or error. It is pretty clear. Fretwell asked when the Code was approved for the City of Tybee. He stated there is a statement in the Code that it does not apply to anything prior to the date that it was accepted. It’s what happens after that date. Carolyn Smith did not necessarily disagree with Pam, but agreed more with Fretwell’s argument. She felt that it was best to side with caution because of safety in numbers. She gave an example. Pam stated that we are making employee matters public record. She strongly disagreed with this. Carolyn and Walker agreed that it was in the Code. Pam argued that it was in the Code to go to the designee. Fretwell stated that the complaint is to come to the Commission according to the Code. Pam stated the Clerk of Council gives the complaint to our designee. Pam handed out a flow chart that she and Sue Off designed. A complaint goes to Clerk of Council and within 5 business days it goes to the Ethics’ designee (Chairperson, Co-Chairperson, or Commission member). At this point the designee decides if it is an employee matter, is it less than 6 months old, is it signed, and is it in writing. Pam felt that the Chairperson was very capable of making that decision. Fretwell stated that he may be capable of doing it, but he refused to do it. Fretwell stated that Bubba has insisted that everything be open according to the records law. Carolyn stated that she felt that is was a matter of interpretation. She read 4.14-C-2 from the Code – “The Clerk of Council office is to deliver the sealed declaration of complaint to the presiding Commission Officer who thereafter communicated the complaint to commission members. Carolyn stated that this could be done by phone and it doesn’t say the officer makes any decisions. 4.14-C-3 states “subsequently Commission members, in a manner consistent with the Complaint Policy, are to determine if the complaint qualities for further action.” We are charged with determining if a complaint qualifies for further action after a complaint is received. Walker discussed C and D parts of 4.14. He stated that it seemed that D part where employees are dealt with by the City Manager was added later. He then stated we could possibly allow the presiding officer to contact the City Manager when a complaint involved a city employee. Carolyn stated a “qualified complaint” in that section means that it meets all the requirements. There is some determination there. Pam stated that 14.4-C-1 reads “must meet the qualifications described in the Complaint Policy.” She was concerned about the fact that a city employee or an incomplete complaint would be public record if the Complaint Policy was changed to have the designee communicate the complaint to the Commission. She didn’t feel that this was the intent of the Code. Randi Bryan agreed. She doesn’t feel the Commission should handle employee matters. Motion was re-read. Carolyn commented on the way it was worded, “the Ethics Commission communicates the complaint” is not the first step. The first step is checking the check list to make sure the requirements are met and then checking to see if it involves a city employee. If it involves a city employee the complaint goes to the City Manager or if it does not then it goes to the Commission. Walker stated that you are reviewing the complaint. Pam stated that you are opening and reading it. It is public record. Randi stated that you are going to have a name to that and she feels from a HR standpoint that is very dangerous. Fretwell stated if the clerk gives it to the designee and the designee communicates it to the Commission then it can be open at the meeting and everyone can be in on the decision. Michael asked if the designee was the problem. Walker withdrew the motion. Pam made a motion that the Commission appoints a new designee. Randi seconded the motion. There was discussion on whether or not the body should select another designee. It had been decided in the previous meeting that the chairperson was the designee, if that person was not available then the vice-chairperson, if neither are available then a Commission member would be the designee. Fretwell doesn’t feel that the motion to change the designee would help. Primarily we are interested in what we want to do about the complaint. Pam asked would Fretwell reconsider and be the designee. Michael stated that when it reaches the table of the Commission the complaint has to be reviewed. Walker stated that if the complaint deals with any city employee the ordinance states that the complaint must be handled by the City Manager unless he or she wants the Commission to help. It was discussed that the City Manager must report back to the Commission on the actions taken. Pam stated that the City Manager does not have to mention the name at that point. The Commission can be apprised in writing and a name does not need to be shared. Fretwell asked if the City Manager had to have an open meeting to determine the action. Pam answered no. Fretwell then stated that if it’s a city employee then it’s confidential which seems strange. Fretwell stated that we have a motion on the floor that has been seconded. Carolyn questioned if Fretwell was comfortable being the designee. Fretwell stated it depended on what the designee had to do. He expressed his feeling in the email. He again reiterated that he feels that the complaint should be opened by the Commission. He said that he may not know if it is a city employee. Walker stated that the Clerk is accepting the complaint from a person and giving them a receipt. The Clerk will know if that person is a city employee or not. Then he realized that the Clerk may recognize the person making a complaint as an employee, but the complaint itself may not be against a city employee. Pam stated that this could be addressed - possibly call the person who gave the complaint and asked them if it was a city employee or not. Walker stated that the check list could include a section for city employee. Randi disagreed. Michael asked if a city employee could request that it be made known to the Ethics Commission. Fretwell called for the question. Michael stated that we are confused about designee; we are confused about what we are supposed to see or review. We are all sworn in. He doesn’t know what the issue is. Walker did not see any reason to change the designee. If the chair for any reason wants to appoint a designee and switch to the vice-chair, that is the prerogative of the chair. Randi stated that clearly the Code was not meant to get into personnel issues. Walker stated that it seemed that an extra paragraph somehow was placed separately and when it was drafted should have been placed in the Code in a better fashion. Pam would like to amend the motion to have the vice-chair be the designee rather than the chair. Michael seconded the motion. 4 (Pam, Randi, Michael, Danny) in favor – 2 opposed (Fretwell and Walker). There was discussion after the vote. Walker felt that the vote was a mistake to change the presiding officer. The city ordinance states that the complaint is to go to the presiding Commission Officer. Pam stated that was only after item one. It determines that it is qualified. Randi stated that it also states that the City Manager is to handle city employees. Walker quoted from the ordinance, “a declaration must meet the qualification as described in the complaint policy” then it states that “the Clerk of Council office is to deliver the sealed declaration complaint to the presiding commission officer and thereafter communicates complaint to commission members.” 14.4-C-2 The presiding officer can designate someone for them, but the city ordinance cannot be changed. Michael asked if it was merely wording that passes along the submittal. Randi quoted 14.4-E-1, “The Commission has the responsibility to investigate, hear, validate, and dispose of complaints against Public Servants other than Employees in a manner consistent with this Code and the Complaint Policy.” She pointed out that this was another conflict. Fretwell stated that this was all taken care of in the policy and everything else that has been said. The question is who will receive and what to do about the complaint. Randi felt at this point we needed guidance from the city attorney. Michael shared that he has picked up from conversation that there will be a huge response of complaints from city employees because they feel the Commission is another voice for them. Their vision is thatstanding before the Commission arguing their points, but they are not the proper body to recommend according to the ordinance. To recommend, we have to see what the complaint is to make a honest opinion. Fretwell stated that the original motion that was withdrawn that the Ethics Commission designee and whoever that designee may be communicates the complaint to the Commission members. The business about the designee came up as a side issue. The main issue is whether the communication is to the Commission members who assign the complaint to the proper authority or does the designee assign it. There was no motion on the floor. Fretwell asked if this meant that the Commission members felt that the designee should handle all the business. Walker felt that it meant that the designee would make the determination whether the complaint was against a city employee or not. If it was a city employee, it passes to the City Manager, if not the Commission would meet and review the complaint. Walker felt that the Commission should determine if the complaint was valid or not valid. Carolyn stated that it is not up to the City Manager to review the check list. It is the responsibility of the Commission to send a qualified complaint to the City Manager. Walker stated that the Commission should see it. Fretwell asked why the designee has to make the decision in the first place. Pam responded so that employee matters would not be public. Walker stated that these are ethics violation rather than job performance and should be public record. Fretwell asked why the Commission is protecting city employees when they cannot protect other people. Carolyn stated that part of this body’s responsibilities is education so that city employees will be educated of this process and they will understand that it may be public. Michael stated that we should have Lynn Hamilton do an explanatory review so that people understand. Carolyn agreed. Randi made a motion to table the discussion and wait until Bubba is present and ask him about it so that we could have clarification and make sure there is no legal ramification. Pam seconded. Fretwell stated that Bubba had written him an email stating that III in the Complaint Policy could stand, but he could see Fretwell’s view and the Commission could make that change. Pam would like legal advice from Bubba. Fretwell stated that Bubba will tell you that legally you can have the designee to open the complaint and make that decision. Michael stated that in full context the decision the Commission makes is a recommendation not policy. Fretwell questioned what the Commission was going to do about the matter of open records and felt that since the Commission was not going to abide by the suggestion in his email and since he could not do what the Commission was proposing, he must resign his position as member and chair of the Ethics Commission. He would turn his resignation into the Mayor tomorrow. There was discussion before the Commission accepted his resignation. Carolyn asked Fretwell if it would make a difference since Randi had made a motion to consult Bubba in regards to the city employee aspect before he made that decision. She didn’t feel that anyone was concerned about opening the complaint. Danny Hill stated that it was the matter of determining whether or not the complaint involved a city employee. Fretwell stated that this Commission should make the decision as to whether or not that person is a city employee. The designee could make a mistake. Carolyn stated that the concern is when the Commission meets, it is public record and therefore a city employee is open to the public. Randi’s motion is to consult Bubba about that aspect. Carloyn asked Fretwell to continue to preside over the meeting since the concern is for the employee and what the employee would be exposed to and if that is legal or not. She stated that no decision has been made at this meeting other than to consult Bubba. Randi would like Bubba to tell the Commission that it is not a legal issue exposing a city employee to public record. Michael felt Fretwell’s concern was the chain of evidence which he felt was a good argument and that Fretwell wanted to protect that. The problem might very well be the designee’s power to distribute or not. If a complaint was against someone in a high position, there could be a problem with the process especially if a lawyer was involved. Carolyn called for the question. The motion to table the discussion until Bubba could give clarification on personnel and make sure there is no legal ramification was approved. Walker wanted to address other items in Fretwell’s email. Walker moved to accept B1 and B2 in the email which read: (B1) If the accused agrees that a violation has occurred, no further investigation will take place, (B2) For an agreed violation the case will be reported to the City Council for disposition. Pam seconded the motion. There was no discussion. The Commission unanimously approved that this should be added to the Complaint Policy. In the Ethics Commission bylaws, change the tense under the Creation and Purpose in A part to read: Pursuant to Ethics Ordinance section 4.01 there has been created the Ethics Commission. In the Ethics Commission Complaint Policy, change the preposition in IV. C part to read: Ethic Commission investigatory review to be held with in 30 days from the date of response by accused. Fretwell wanted to make a proposal after discussion on the check list, but went ahead with the proposal without discussion. He stated that there had been feed back about the check list. He felt that a Complaint Procedure and a Check List had been developed. A check list is part of the procedure and the procedure is part of the policy. He felt that the Commission had accepted the procedure as the policy and there should be a complete policy. The policy should state why there is a complaint procedure and what the Commission is going to do just as it is in Article II (Declaration of Policy) in the ordinance. The ordinance declaration talks about the scope and applicability. He feels that this should be included in the Complaint Policy. He would like to have a small committee – Fretwell, Carolyn and two other people – to get together and try to combine all these things into a complete policy and present it to the Commission for discussion at the next meeting. He felt that it seemed more appropriate for the Complaint procedure to work into it and the policy to conform to the Code of Ethics. Carolyn stated that she and Fretwell disagreed at this point. She felt that adjustments could be made, but the current policy was precise and met the requirements the Commission was suppose to develop – procedures, time frames, roles, responsibilities, rights, restraints, and so forth. Fretwell felt the complaint policy should establish the complaints that the Code covers. Walker stated that Fretwell wants to have more information in the policy. He stated that he agreed with Bubba in the last meeting where the complainant should state what part of the ethic ordinance has been violated. Carolyn stated that we could reference all the violations from the Code. Pam discussed the feed back she had gotten concerning the checklist – phone numbers deleted etc. She went through the scenario of someone making a complaint and asked where naming the section of the Code should occur. Walker stated that when a person called and asked what is the correct way to process a complaint that it could then be suggested to pick up a complaint policy to insure the proper procedure. Pam quoted the ordinance which says that the complainant has to have a written description that asked the question to be answered. Pam asked the Commission what if someone comes in and doesn’t know the procedure and gives the complaint without asking any questions to the Clerk of Council. At that point, Walker stated, it is almost certain that the complaint would be returned. Fretwell proposed that if someone was making a complaint would he/she come in with it completed or would he/she research on how it should be done. Pam felt that most complainants were going to write down everything as thoroughly as they could and turn it into the Clerk of Council. She questioned if the complainant should get the procedure at this time. Walker stated that the Clerk of Council should only give the complainant a receipt. If they did not research it ahead of time, it would that the complaint be returned to the complainant. A copy of the Code and a copy of the procedure can be attached when the complaint is returned.. Fretwell felt that a copy of the policy should be given instead of a copy of the Code with the checklist. Carolyn stated that the intent of this is to let the complainant know that filing a complaint is a serious matter. They would realize before a complaint is filed that certain procedures must be met before a complaint is handled. This is to avoid frivolous complaints. Pam stated one of the requirements in a complainant’s written and signed statement is to fully describe the circumstances and now we are asking for more such as which section of the Code it violates . Fretwell asked what was fully describing the circumstance. Pam stated that she would compromise. She would like a short list rather than expecting the complainant to search the Code so there is less of a burden on the complainant. Fretwell stated that the violations are something different. Randi stated that if she did something wrong she would like for them to state exactly what it is that she did wrong. She would like to know the Code that was violated. Pam read an email from Bubba where he agreed that it would be difficult for someone to go through the Code and allege a certain violation. She shared more feedback on the check list such as changing public officials other than public servant, name to be removed, and also to provide a copy of the complaint policy. They would get a check list, short list, and the policy. Short list would be established from Article 3 of the Code and reference the Code. Fretwell asked the wish of the Commission for the next meeting. Pam stated that she was very comfortable with the ordinance, the bylaws, the procedure; the flow chart was going to be helpful too, and the modified checklist. Fretwell suggested if anyone had any ideas on the Complaint policy, to write it up and email to all Commission members before the next meeting. Next meeting established for Monday, October 22nd, at 5:00 pm. Carolyn made a motion to adjourn - Seconded by Walker. Meeting Adjourned.