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HomeMy WebLinkAboutOrdinances - MC-04-849 - 05/17/2004 - ethics code and gift banORDINANCE NO. MC-04-849 An Ordinance Amending Section 2-55 of the Municipal Code, City of McHenry, Illinois WHEREAS, the Illinois General Assembly has enacted the State Officials and Employees Ethics Act (Public Act 93-615, effective November 19, 2003, as amended by Public Act 93-617, effective December 9, 2003) (the "Act"), which is a comprehensive revision of State Statutes regulating ethical conduct, political activities and the solicitation and acceptance of gifts by State officials and employees; and WHEREAS, the Act requires all units of local government , within six months after the effective date of Public Act 93-615, to adopt ordinances regulating the political activities of, and the solicitation and acceptance of gifts by, the officers and employees of such units "in a manner no less restrictive" than the provisions of the Act; and WHEREAS, it is the clear intention of the Act to require units of local government to implement regulations that are at least as restrictive as those contained in the Act, and to impose penalties for violations of those regulations that are equivalent to those imposed by the Act, notwithstanding that such penalties may exceed the general authority granted to units of local government to penalize ordinance violations; and WHEREAS, it is the clear intention of the Act to provide units of local government with all authority necessary to implement its requirements on the local level regardless of any general limitations on the power to define and punish ordinance violations that might otherwise be applicable; and WHEREAS, because the Act provides for the imposition of significant penalties for violations of said local regulations, it is necessary to adopt the required regulations by ordinance rather than by resolution. NOW, THEREFORE, BE IT ORDAINED by the Mayor and City Council of the City of McHenry, McHenry County, Illinois, as follows: SECTION 1: That Section 2-55 of the Municipal Code, City of McHenry, is hereby repealed in its entirety and replaced with the following: Section 2-55 CODE OF ETHICS A. DECLARATION OF POLICY: The proper operation of democratic government requires that Officers and Employees be independent, impartial and responsible to the people; that government decisions and policy be made in proper channels of the governmental structure; that public office not be used for personal gain; and that the public have confidence in the integrity of its government. In recognition of these goals, a Code of Ethics, Page 1 Code of Ethics for all City Officers and Employees is adopted. The purpose of this Code of Ethics is to establish guidelines for ethical standards of conduct for all City Officers and Employees by setting forth those acts or actions that are incompatible with the best interest of the City and by directing disclosure by such Officers and Employees of private financial or other interests in matters affecting City life. 2. This section does not repeal or otherwise amend or modify existing provisions of the City of McHenry Municipal Code or any other Departmental rule or regulation which regulates the conduct of City officials and employees. To the extent that the City of McHenry Municipal Code or any Departmental rule or regulation is less restrictive or conflicts with this Section, then the provisions of this Section shall prevail, but to the extent those provisions are more restrictive, they shall prevail. B. CODE OF ETHICS: The requirements set forth herein shall constitute a Code of Ethics establishing reasonable standards and guidelines for the ethical conduct of Officers and Employees of the City. C. DEFINITIONS: For purposes of this Section, the following terms shall be given these definitions: "Campaign for elective office" means any activity in furtherance of an effort to influence the selection, nomination, election, or appointment of any individual to any federal, State, or local public office or office in a Political Organization, or the selection, nomination, or election of Presidential or Vice -Presidential electors, but does not include activities: (i) relating to the support or opposition of any executive, legislative, or administrative action; (ii) relating to collective bargaining; or (Ili) that are otherwise in furtherance of the person's official duties. "Candidate" means a person who has filed nominating papers or petitions for nomination or election to an elected office, or who has been appointed to fill a vacancy in nomination, and who remains eligible for placement on the ballot at a regular election, as defined in Section 1-3 of the Election Code (10 Ill. Comp. Stat. 5/1-3). "Collective Bargaining" has the same meaning as that term is defined in Section 3 of the Illinois Public Labor Relations Act (5 Ill. Comp. Stat. 315/3). "Compensated Time" means, with respect to an Employee, any time worked by or credited to the Employee that counts toward any minimum work time requirement imposed as a condition of his or her employment, but for purposes of this Section, does not include any designated holidays, vacation periods, personal time, compensatory time off or any period when the Employee is on a Leave of Absence. With respect to Officers or Employees whose hours are not fixed, "compensated time" includes any period of time when the Officer or Employee is on premises under the control of the Employer and any other time when the Officer or Employee is executing his or her official duties, regardless of location. Code of Ethics, Page 2 "Compensatory Time Off" means authorized time off earned by or awarded to an Employee to compensate in whole or in part for time worked in excess of the minimum work time required of that Employee as a condition of his or her employment. "Contribution" has the same meaning as that term is defined in Section 9-1.4 of the Election Code (10 Ill. Comp. Stat. 5/9-1.4). "Employee" means a person employed by the City of McHenry, whether on a full-time or part-time basis or pursuant to a contract, whose duties are subject to the direction and control of an Employer with regard to the material details of how the work is to be performed, but does not include an independent contractor. "Employer" means the City of McHenry. "Gift" means any gratuity, discount, entertainment, hospitality, loan, forbearance, or other tangible or intangible item having monetary value including, but not limited to, cash, food and drink, and honoraria for speaking engagements related to or attributable to government employment or the official position of an Officer or Employee. "In tra-Governmental Gift" means any gift given to an Officer or Employee of the City from another Officer or Employee of the City. "Inter -Governmental Gift" means any gift given to an Officer or Employee of the City from a member or employee of the legislative branch of the government of the State of Illinois, a judge or employee of the judicial branch of the government of the State of Illinois, an officer or employee of the executive branch of the government of the State of Illinois, an officer or employee of a unit of local government, home rule unit, or school district, or an officer or employee of any other governmental entity. "Leave of Absence" means any period during which an Employee does not receive (i) compensation for employment, (ii) service credit towards pension benefits, and (iii) health insurance benefits paid for by the Employer. "Officer" means a person who holds, by election or appointment, an office created by statute or ordinance, regardless of whether the officer is compensated for service in his or her official capacity. "Political Activity" means any activity in support of or in connection with any campaign for elective office or any Political Organization, but does not include activities (1) relating to the support or opposition of any executive, legislative, or administrative action, (ii) relating to collective bargaining, or (iii) that are otherwise in furtherance of the person's official duties. Code of Ethics, Page 3 "Political Organization" means a party, committee, association, fund, or other organization (whether or not incorporated) that is required to file a statement of organization with the State Board of Elections or a county clerk under Section 9-3 of the Election Code (10 Ill. Comp. Stat. 5/9-3), but only with regard to those activities that require filing with the State Board of Elections or a county clerk. "Prohibited Political Activity" means: 1. Preparing for, organizing, or participating in any political meeting, political rally, political demonstration, or other political event. 2. Soliciting contributions, including but not limited to the purchase of, selling, distributing, or receiving payment for tickets for any political fund-raiser, political meeting, or other political event. 3. Soliciting, planning the solicitation of, or preparing any document or report regarding anything of value intended as a campaign contribution. 4. Planning, conducting, or participating in a public opinion poll in connection with a campaign for elective office or on behalf of a Political Organization for political purposes or for or against any referendum question. 5. Surveying or gathering information from potential or actual voters in an election to determine probable vote outcome in connection with a campaign for elective officer or on behalf of a Political Organization for political purposes or for or against any referendum question. 6. Assisting at the polls on election day on behalf of any Political Organization or candidate for elective office or for or against any referendum question. 7. Soliciting votes on behalf of a candidate for elective office or a Political Organization or for or against any referendum question or helping in an effort to get voters to the polls. 8. Initiating for circulation, preparing, circulating, reviewing, or filing any petition on behalf of a candidate for elective office or for or against any referendum question. 9. Making contributions on behalf of any candidate for elective office in that capacity or in connection with a campaign for elective office. 10. Preparing or reviewing responses to candidate questionnaires. 11. Distributing, preparing for distribution, or mailing campaign literature, campaign signs, or other campaign material on behalf of any candidate for elective office or for or against any referendum question. Code of Ethics, Page 4 12. Campaigning for any elective office or for or against any referendum question. 13. Managing or working on a campaign for elective office or for or against any referendum question. 14. Serving as a delegate, alternate, or proxy to a political party convention. 15. Participating in any recount or challenge to the outcome of any election. "Prohibited Source" means any person or entity who: 1. is seeking official action (i) by an Officer or (ii) by an Employee, or by the Officer or another Employee directing that Employee; 2. does business or seeks to do business (i) with the Officer or (ii) with an Employee, or with the Officer or another Employee directing that Employee; 3. conducts activities regulated (i) by the Officer or (ii) by an Employee, or by the Officer or another Employee directing that Employee; or 4. has interests that may be substantially affected by the performance or non- performance of the official duties of the Officer or Employee. "Relative" means those people related to the Officer or Employee as father, mother, son, daughter, brother, sister, uncle, aunt, great aunt, great uncle, first cousin, nephew, niece, husband, wife, grandfather, grandmother, grandson, granddaughter, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, half sister, and including the father, mother, grandfather, or grandmother of the Officer's or Employee's spouse and the Officer's or Employee's fiance or fiancee. D. PROHIBITED POLITICAL ACTIVITIES: 1. No Officer or Employee shall intentionally perform any prohibited Political Activity during any Compensated Time, as defined herein. No Officer or Employee shall intentionally use any property or resources of the City in connection with any Prohibited Political Activity. 2. At no time shall any Officer or Employee intentionally require any other Officer or Employee to perform any Prohibited Political Activity (i) as part of that Officer or Employee's duties, (ii) as a condition of employment, or (iii) during any Compensated Time off (such as holidays, vacation or personal time off). Code of Ethics, Page 5 3. No Officer or Employee shall be required at any time to participate in any Prohibited Political Activity in consideration for that Officer or Employee being awarded additional compensation or any benefit, whether in the form of a salary adjustment, bonus, compensatory time off, continued employment or otherwise, nor shall any Officer or Employee be awarded additional compensation or any benefit in consideration for his or her participation in any Prohibited Political Activity. 4. Nothing in this Section prohibits activities that are permissible for an Officer or Employee to engage in as part of his or her official duties, or activities that are undertaken by an Officer or Employee on a voluntary basis which are not prohibited by this Section. 5. No person either: (i) in a position that is subject to recognized merit principles of public employment; or (ii) in a position the salary for which is paid in whole or in part by federal funds and that is subject to the Federal Standards for a Merit System of Personnel Administration applicable to grant-in-aid programs, shall be denied or deprived of employment or tenure solely because he or she is a member or an officer of a political committee, of a political party, or of a Political Organization or club. E. GIFT BAN: 1. Except as permitted by this Section, no Officer or Employee, and no spouse of or immediate family member living with any Officer or Employee (collectively referred to herein as "recipients"), shall intentionally solicit or accept any gift from any Prohibited Source, as defined herein, or which is otherwise prohibited by law or ordinance. No Prohibited Source shall intentionally offer or make a gift that violates this Section. 2. EXCEPTIONS: Section 2-55-E.1 is not applicable to the following: Opportunities, benefits, and services that are available on the same conditions as for the general public. ii. Anything for which the Officer or Employee, or his or her spouse or immediate family member, pays the fair market value. ill. Any (a) contribution that is lawfully made under the Election Code; or (b) activities associated with a fund-raising event in support of a Political Organization or candidate. iv. Educational materials and missions. V. Travel expenses for a meeting to discuss business. vi. A gift from a Relative. Code of Ethics, Page 6 vii. Anything provided by an individual on the basis of a personal friendship unless the recipient has reason to believe that, under the circumstances, the gift was provided because of the official position or employment of the recipient or his or her spouse or immediate family member and not because of the personal friendship. In determining whether a gift is provided on the basis of personal friendship, the recipient shall consider the circumstances under which the gift was offered, such as: (a) the history of the relationship between the individual giving the gift and the recipient of the gift, including any previous exchange of gifts between those individuals; (b) whether to the actual knowledge of the recipient the individual who gave the gift personally paid for the gift or sought a tax deduction or business reimbursement for the gift; and (c) whether to the actual knowledge of the recipient the individual who gave the gift also at the same time gave the same or similar gifts to other Officers or Employees, or their spouses or immediate family members. viii. Food or refreshments not exceeding $75 per person in value on a single calendar day; provided that the food or refreshments are (i) consumed on the premises from which they were purchased or prepared or (ii) catered. For the purposes of this Section, "catered" means food or refreshments that are purchased ready to consume which are delivered by any means. ix. Food, refreshments, lodging, transportation, and other benefits resulting from outside business or employment activities (or outside activities that are not connected to the official duties of an Officer or Employee), if the benefits have not been offered or enhanced because of the official position or employment of the Officer or Employee, and are customarily provided to others in similar circumstances. X. Intra-Governmental and Inter -Governmental gifts. Xi. Bequests, inheritances, and other transfers at death. xii. Any item or items from any one Prohibited Source during any calendar year having a cumulative total value of less than $100. Each of the exceptions listed in this Section is mutually exclusive and independent of every other. 3. DISPOSITION OF GIFTS: An Officer or Employee, his or her spouse or an immediate family member living with the Officer or Employee, does not violate this Section if the recipient promptly takes reasonable action to return a gift from a Prohibited Source to its source or gives the gift or an amount equal to its value to an appropriate charity that is exempt from income taxation under Section 501 (c)(3) of the Internal Revenue Code of 1986, as now or hereafter amended, renumbered or succeeded. Code of Ethics, Page 7 F. ETHICS ADVISOR: 1. The Mayor, with the advice and consent of the City Council shall designate an Ethics Advisor for the City. 2. The Ethics Advisor shall provide guidance to the Officers and Employees of the City concerning the interpretation of and compliance with the provisions of this Section and State ethics laws. The Ethics Advisor shall perform such other duties as may be delegated by the City Council. G. ETHICS COMMISSI 1. There is hereby created a commission to be known as the Ethics Commission of the City of McHenry. The Commission shall be comprised of three members appointed by the Mayor with the advice and consent of the City Council. No person shall be appointed as a member of the Commission who is related, either by blood or marriage up to the degree of first cousin, to any elected Officer of the City. 2. At the first meeting of the Commission, the initial appointees shall draw lots to determine their initial terms. Two commissioners shall serve two-year terms, and the third commissioner shall serve a one-year term. Thereafter, all commissioners shall be appointed to two-year terms. Commissioners may be re -appointed to serve subsequent terms. 3. At the first meeting of the Commission, the commissioners shall choose a chairperson from their number. Meetings shall be held at the call of the chairperson or any two commissioners. A quorum shall consist of two commissioners, and official action by the Commission shall require the affirmative vote of two members. 4. The Mayor, with the advice and consent of the City Council, may remove a commissioner in case of incompetency, neglect of duty or malfeasance in office after service on the commissioner by certified mail, return receipt requested, of a copy of the written charges against the commissioner and after providing an opportunity to be heard in person or by counsel upon not less than ten days' notice. Vacancies shall be filled in the same manner as original appointments. 5. The Commission shall have the following powers and duties: To promulgate procedures and rules governing the performance of its duties and the exercise of its powers. ii. Upon receipt of a signed, notarized, written complaint, to investigate, conduct hearings and deliberations, issue recommendations for disciplinary actions, impose fines in accordance with this Section and refer violations of Sections 2-55-D and E to the City Attorney for prosecution. Code of Ethics, Page 8 The Commission shall, however, act only upon the receipt of a written complaint alleging a violation of this Section and not upon its own prerogative. iii. To receive information from the public pertaining to its investigations and to require additional information and documents from persons who may have violated the provisions of this Section. iv. To compel the attendance of witnesses and to compel the production of books and papers pertinent to an investigation. It is the obligation of all Officers and Employees of the City to cooperate with the Commission during the course of its investigations. Failure or refusal to cooperate with requests by the Commission shall constitute grounds for discipline or discharge. V. To prepare and publish such manuals and guides as the Commission deems appropriate to facilitate compliance with the terms of this Section. vi. The powers and duties of the Commission are limited to matters clearly within the purview of this Section. 6. Complaints: i. Complaints alleging a violation of this Section shall be filed with the Ethics Commission. ii. Within three business days after the receipt of a complaint, the Commission shall send by certified mail, return receipt requested, a notice to the respondent that a complaint has been filed against him or her and a copy of the complaint. The Commission shall send by certified mail, return receipt requested, a confirmation of the receipt of the complaint to the complainant within three business days after receipt by the Commission. The notices to the respondent and the complainant shall also advise them of the date, time, and place of the meeting to determine the sufficiency of the complaint and to establish whether probable cause exists to proceed. iii. Upon not less than 48 hours' public notice, the Commission shall meet to review the sufficiency of the complaint and, if the complaint is deemed sufficient to allege a violation of this Section, to determine whether there is probable cause, based on the evidence presented by the complainant, to proceed. The meeting may be closed to the public to the extent authorized by the Open Meetings Act. Within seven business days after receiving the complaint, the Commission shall issue notice to the complainant and the respondent of the Commission's ruling on the sufficiency of the complaint and, if necessary, on probable cause to proceed. If the complaint is deemed not sufficient to allege a violation or if there is no determination Code of Ethics, Page 9 of probable cause, then the Commission shall send by certified mail, return receipt requested, a notice to the parties of the decision to dismiss the complaint, and that notice shall be made public. iv. If the complaint is deemed sufficient to allege a violation of Section 2-55- E and there is a determination of probable cause, then the Commission's notice to the parties shall include a hearing date scheduled within four weeks after the complaint's receipt. Alternatively, the Commission may elect to notify in writing the City Attorney to prosecute such actions and request that the complaint be adjudicated judicially and the Commission's notice to the parties shall indicate this fact. V. If the complaint is deemed sufficient to allege a violation of Section 2-55- D, then the Commission shall notify in writing the City Attorney to prosecute such actions and shall transmit to the City Attorney the complaint and all additional documents in the custody of the Commission concerning the alleged violation. The Commission's notice to the parties shall indicate these facts. vi. If the Commission elects to hear a case brought under Section 2-55-E, on the scheduled date and upon at least 48 hours' public notice of the meeting, the Commission shall conduct a hearing on the complaint and shall allow both parties the opportunity to present testimony and evidence. The hearing may be closed to the public only if authorized by the Open Meetings Act. vii. Within thirty days after the date the hearing or any recessed hearing of a case brought under Section 2-55-E is concluded, the Commission shall either: (i) dismiss the complaint; or (ii) issue a recommendation for discipline to the alleged violator and to the Mayor or other Officer having authority to discipline the Officer or Employee, or impose a fine upon the violator, or both. The particular findings in the case, any recommendation for discipline, and any fine imposed shall be a matter of public information. viii. If the hearing on a case brought under Section 2-55-E was closed to the public, the respondent may file a written demand for a public hearing on the complaint within seven business days after the issuance of the recommendation for discipline or imposition of a fine, or both. The filing of the demand shall stay the enforcement of the recommendation or fine. Within fourteen days after receiving the demand, the Commission shall conduct a public hearing on the complaint upon at least 48 hours' public notice of the hearing and allow both parties the opportunity to present testimony and evidence. Within seven days thereafter, the Commission shall publicly issue a final recommendation to the alleged violator and to the Mayor or other Officer having authority to discipline the Officer or Employee or impose a fine upon the violator, or both. Code of Ethics, Page 10 ix. If a complaint is filed during the sixty days preceding the date of any election at which the respondent is a Candidate, the Commission shall render its decision as required under subsection (vii) within seven days after the complaint is filed, and during the seven days preceding that election, the Commission shall render such decision before the date of that election, if possible. X. A complaint alleging the violation of this Section must be filed within one year after the alleged violation. xi. In the event a member of the Commission is the subject of an alleged violation of this Section, such commissioner shall immediately recuse himself or herself from the investigation of such alleged violation, and shall take no part in the final action of the Commission regarding such alleged violation. A substitute Commissioner shall be appointed pursuant to the terms of Section 2-55-G.1 above for purposes relating to this matter only. H. PENALTIES: A person who intentionally violates any provision of Section 2-55-D may be punished by a term of incarceration in a penal institution other than a penitentiary for a period of not more than 364 days, and may be fined in an amount not to exceed $2,500. 2. A person who intentionally violates any provision of Section 2-55-E is subject to a fine in an amount on not less than $1,001 and not more than $5,000. 3. The Commission may levy an administrative fine of up to $5,000 against any person who violates this Code of Ethics or who intentionally makes a false, frivolous, or bad faith allegation. 4. In addition to any administrative fines imposed pursuant to Section 2-55-H.3 above, any person who intentionally makes a false report alleging a violation of any provision of Section 2-55 to the Ethics Commission, the State's Attorney or any other law enforcement official may be punished by a term of incarceration in a penal institution other than a penitentiary for a period of not more than 364 days, and may be fined in an amount not to exceed $2,500. 5. A violation of Section 2-55-D shall be prosecuted as a criminal offense by the City Attorney by filing in the circuit court an information, or sworn complaint, charging such offense. The prosecution shall be under and conform to the rules of criminal procedure. Conviction shall require the establishment of the guilt of the defendant beyond a reasonable doubt. 6. A violation of Section 2-55-E may be prosecuted as a quasi -criminal offense by Code of Ethics, Page 11 an attorney for the City, or the Ethics Commission, through the designated administrative procedure. 7. In addition to any other penalty that may be applicable, whether criminal or civil, an Officer or Employee who intentionally violates any provision of this Section is subject to discipline or discharge. I. DISTRIBUTION OF CODE OF ETHICS: The City Administrator shall cause a copy of this Code of Ethics to be distributed to every Officer and Employee of the City within thirty days after enactment of this Code of Ethics. Each Officer and Employee elected, appointed or engaged hereafter shall be furnished a copy before entering upon the duties of his or her office or employment. SECTION 2: If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment shall not affect, impair, invalidate or nullify the remainder thereof, which remainder shall remain and continue in full force and effect. SECTION 3: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. SECTION 4: This Ordinance shall be in full force and effect upon its passage, approval and publication in pamphlet form (which publication is hereby authorized) as provided by law. Voting Aye: BOLGER,GLAB, LOW, .MURGATROYD,W'MMER, PETERSON, CONDON. Voting Nay: NONE Absent: NONE Abstain: NONE APPROV D: M or Susan E. Low (SEAL) ATTEST: Cit Cler Janice Passed: 5 / 17 Approved: 5 / 17 /04 Published: 5 / 1 7 /n4 UArschlossberg\Ethics Ord inance\M cH enry\Ethics ordinance doc Code of Ethics, Page 12